Fincher challenges indictment, jurisdiction

Case about the limits of federal power, lawyer contends

Last updated Thursday, January 25, 2007 10:05 PM CST in News

By Ron Wood
The Morning News

    FAYETTEVILLE -- Hollis Wayne Fincher is challenging the validity of the grand jury indictment that led to his conviction for illegally possessing machine guns.

    The motion also challenges the federal court's jurisdiction in the case and seeks "an arrest of judgment."

    The motion argues Fincher's indictment makes no attempt to allege federal jurisdiction under the interstate commerce clause of the U.S. Constitution. It alleges Fincher possessed three machine guns described only as homemade.

    The motion contends the government has never shown the defendant where it says Congress has the power to regulate machine guns not sold in interstate commerce.

    "The indictment fails to plead jurisdiction, in that the indictment contains not a hint of accusation of any interstate commerce," according to the motion filed by Fincher's attorney, Oscar Stilley.

    Stilley contends the case is not about machine guns but the outer limits of federal power. Without some limits, Stilley argues, there is nothing the government can't try to regulate under the Commerce Clause.

    "Without an arrest of judgment in this case, the Commerce Clause provides no limitation whatsoever on federal power and jurisdiction," according to a brief.

    The motion also contends the indictment failed to charge Fincher possessed the guns outside the protections afforded by the Second Amendment. Stilley contends the grand jury must include in an indictment consideration of whether an act was protected by the Constitution.

    "With nothing in the indictment about interstate commerce, the indictment does not charge and offense," according to the motion. "If the indictment need not allege the elements, the facts that make the possession illegal, the Fourth Amendment right to an indictment is rendered meaningless."

    Stilley also argues the trial jury should have been allowed to at least see what the Second Amendment and the Commerce Clause say.

    Stilley further argues the case law is currently so convoluted it's impossible to know which guns can be possessed and which cannot.

    A federal court jury found Fincher guilty Jan. 12 of having illegal, unregistered weapons, including machine guns and a sawed-off shotgun.

    Fincher, 60, had two .308-caliber machine guns, homemade versions of the Browning model 1919. The other firearms were 9 mm STEN design submachine guns and the shotgun.

    Fincher faces up to 20 years in federal prison.

    The defense tried to make a federal case of the Constitution versus gun laws, the government kept the case as simple as possible for jurors -- Fincher had the machine guns and they weren't registered as required.

    The trial was hard-fought and somewhat disjointed because U.S. District Judge Jimm Larry Hendren had to make many rulings about what law and evidence the jury was allowed to hear.

    The judge ruled 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.

    Legal Lingo

    Arrest Of Judgment

    Arrest of Judgment: The staying or stopping of a judgment, after a verdict, for legal cause.

    Source: www.thefreedictionary.com

    Reader Comments (18 comment(s))


    The following comments are provided by readers and are the sole responsibility 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.

    GunShowOnTheNet wrote on Jan 27, 2007 9:30 AM:

    " Good for Wayne. Hopefully this time TRUE justice will be done. Versus the kangaroo-court mock trial that he first received. The FACT of the matter is, that Wayne should have argued the case under the second clause of Amendment II. For, congress was EXPRESSLY denied ANY delegated authority to regulate arms in the hands of We The People. However, they DO have delegated authority concerning the 'militia'. And, not only that, but the U.S. Government is EXPRESSLY charged "to SECURE the blessings of LIBERTY". And, the Right to Keep and Bear Arms is the "TRUE Palladium of Liberty". Wayne is a "People" and therefore his RIGHT to Keep and Bear Arms - ANY kind of arms. Upto and including those borne by the military. Is EXPRESSLY SECURED to him as a citizen of these United States. The Right of the People to Keep and Bear Arms is a PREEXISTENT Natural Right. It is part and parcel of "Life, Liberty and Property". And was long considered as the First Law of Nature. To Wit - "The First Law of Nature is that every man ought to endeavour peace, as far as he has hope of obtaining it; and when he cannot obtain it, that he may seek and use all helps and advantages of war." http://gunshowonthenet.com/2ALaw/LawsofNature.html It was one of the specific rights fought for in the Revolution. "

    GunShowOnTheNet wrote on Jan 27, 2007 9:34 AM:

    " Here is TRUTH.... 2. Those declaratory of the fundamental rights of the citizen: as that all men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness; that the right to property is before and higher than any constitutional sanction; that the free exercise and enjoyment of relgious profession and worship, without discrimination or preference, shall forever be allowed; that every man may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; that every man may bear arms for the defense of himself and of the state; that the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, nor shall soldiers be quartered upon citizens in time of peace; and the like. - Thomas M. Cooley, LL.D, [A Treatise on the Constitutional Limitations Which Rest Upon The Legislative Power of the States of the American Union" 6th Edition, Little, Brown and Company 1890.] (Outline of Declaration of rights for the protection of individuals and minorities, expected from states when forming/amending a Constitution). Mr. Cooley was Dean of the University of Michigan's Law School, Michigan Supreme Court justice, and a nationally recognized scholar. "

    GunShowOnTheNet wrote on Jan 27, 2007 9:36 AM:

    " More TRUTH.... The right [to bear arms] is general. It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been explained elsewhere, consists of those persons who, under the laws, are liable to the performance of military duty, and are officered and enrolled for service when called upon.... [I]f the right were limited to those enrolled, the purpose of the guarantee might be defeated altogether by the action or the neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. But this enables the government to have a well regulated militia; for to bear arms implies something more than mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in so doing the laws of public order. - Thomas M. Cooley, General Principles of Constitutional Law, Third Edition [1898]. "

    straightarrow wrote on Jan 27, 2007 11:13 AM:

    " "the government kept the case as simple as possible for jurors -- Fincher had the machine guns and they weren't registered as required."- from the article. I suspect this is the authors repetition of the government's stated purpose in which the judge was complicit. If read properly it would lead one to believe it would be more accurately expressed thusly: The government and the judge believing the jury to be composed of honest persons,dare not allow that jury to see the law, or hear of the protection of rights in the Constitution of the United States of America if they hope to win a verdict in the government's favor. The jury has a duty to judge not only the facts of a case, but also the law under which the case is brought before them. That duty cannot be fulfilled when they are denied access to the law, all of it pertinent to a case, including constitutional considerations, and are also denied access to a defendant's defense. This was a mockery of justice, the law, and American citizenship for all citizens. There are some people needing a jail sentence here, but Mr. Fincher isn't one of them. "

    DKSuddeth wrote on Jan 27, 2007 11:24 AM:

    " I believe we should start demanding that the senators of our government start holding these federal judges accountable for their wrongful and unconstitutional decisions. "

    David Codrea wrote on Jan 27, 2007 11:41 AM:

    " Squeeze, Baby, Squeeze... http://www.lewrockwell.com/orig/neill2.html "

    Tom wrote on Jan 27, 2007 1:50 PM:

    " DKSuddeth...the patients are already running the asylum, what you suggest would be no better then appointing ANOTHER patient to run it. You see, the senators were responsible for making the unconstitutional laws the judges declare constitutional. And for those not too familiar, even if he had wanted to register them, he could not thanks to congress. Attempting to do that would have been waiving his 5th rights as well. Us useless eaters aren't allowed to have a machine gun manufactured after 1986. It'll be interesting to see this play out, and what kind of mental gymnastics they come up with to further damn an innocent man. "

    straightarrow wrote on Jan 27, 2007 3:40 PM:

    " Our elected representative in both houses of Congress may not be well versed in or devoted to their duty, but you can bet everything you own they understand fully their desire to stay where they are, rather than seek honest work. I have written all mine in quest of impeachment proceedings against Judge Hendren. I know all that will happen if mine is a lone voice will be the snide laughter of the elite at the naivete of the livestock. Don't let me be a lone voice. Everybody speak up, if enough elected officials feel enough threat to their perks of office they will drop Hendren like a hot rock. They will have no more loyalty to him than he has to law. People, this isn't about guns. It is about power and the law. We cannot afford to allow all the power to acquire to government. History is replete with horror stories, as usual and expected outcomes, when government, any government, attains total unbridled power. We don't even need look back in history. Look at current regimes where all the power resides in the state. When that situation occurs there is no law. Only the wielding of power at the whim of the despots. The people then are nothing more than livestock, assets on the hoof, to be exploited for the benefit of the herdsman. That is what the issue here is. "

    GunShowOnTheNet wrote on Jan 27, 2007 3:59 PM:

    " Tom has an extremely valid point. What we need are citizen review committees in every municipality, state and on the federal level. My guess is, that there are many retirees whom would enjoy serving the public. As well as giving them something useful to do. So they don't just fade away as they are currently. I'm sure there would be other qualified people whom would enjoy getting involved as well. The point is, if We The People don't get actively involved. We will have more of the same. Someone MUST watch the watchers. We have ample evidence of what happens when we don't.... "

    GunShowOnTheNet.com wrote on Jan 27, 2007 8:59 PM:

    " Here's one for the TRAITOROUS Judge Hendren - ...This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies. . .It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A CONSTITUTION is, in FACT, and MUST be regarded by the judges, as a FUNDAMENTAL law." - Alexander Hamilton, Federalist #78 "

    GunShowOnTheNet. wrote on Jan 27, 2007 9:06 PM:

    " Most of the courts in the United States are ruling PERVERSELY by "stare decisis" (to stand by that which is decided). Rahter than by the FUNDAMENTAL LAW - THE UNITED STATES CONSTITUTION. By so doing, they are making OUR Constitution of NONE EFFECT. They are DISREGARDING their oaths and are BETRAYING WE THE PEOPLE. We REVOLTED for very simular reasons back in the mid 1700's. If our government continues in their treasonous acts, it will leave We The People with NO other alternative than to do as the founders did. For, if we don't, we shall be made subjects/slaves. Instead of the intended FREE SOVEREIGN CITIZEN at Liberty. All those in government are OUR SERVANTS - NOT our masters.... "

    Kimber Jones wrote on Jan 28, 2007 1:00 AM:

    " The most pernicious enemy of human libery, in the history of human civilization, is the United States Government. Why my father's generation fought the Nazis escapes me. "

    A True Tale of Jimm, Wendy, George wrote on Jan 28, 2007 8:57 AM:

    " When you can be arrested for exercising a God-given right (3), forbidden from using the Constitution in your defense, and denied a jury trial, you are not free. This is the stuff of which totalitarian states are made! No one named Osama, or Mohammed, or Raheem, or Omar or Abdul is imposing this on us. People named Jimm, Wendy and George are. Terrorists cannot take away our freedom. Our own government is actively doing so, frequently with our blessing! "

    Hey Jimm, Wendy wrote on Jan 28, 2007 9:10 AM:

    " This Is Not America "When you can be arrested for exercising a God-given right, forbidden from using the Constitution in your defense, and denied a jury trial, you are not free. This is the stuff of which totalitarian states are made!" Uh, yup. Welcome to the NEW Amerika, comrade. "

    d patriot wrote on Jan 29, 2007 5:32 PM:

    " The issue that has been debated all over the united States is much more simple when you look at and understand the phrase, "SHALL NOT INFRINGE!" The 2nd Amendment was designed to allow the people to protect themselves from government as history has repeatedly proven is necessary! "

    d daxx wrote on Feb 10, 2007 11:11 AM:

    " I still do not understand what it is that our public servants, and the public, masses-r-asses, what is so lacking in understanding regarding the phrase, "SHALL NOT INFRINGE" with regard to the commands of the Bill of Rights! "

    d daxx wrote on Feb 10, 2007 11:13 AM:

    " Oh, and I forgot, I do not have Constitutional Rights, only government has Constitutional Rights, my Rights are inalienable! "

    bulletinman wrote on Feb 13, 2007 8:01 PM:

    " Who is the Sheriff of the county this man lives in. Why hasn't he stood up for this man and arrested the PA and the Judge? This is not my Father's America!i9it9 "


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