Top 10 Stories of the Year No. 10 Militia leader arrested : Appeal is pending for Fincher defense
Posted on Tuesday, December 25, 2007
The sentencing of Wayne Fincher last June attracted national attention from several pro-Second Amendment Internet bloggers, which led to a Montana lawyer taking on the case for free.
The 61-year-old lieutenant commander of the Militia of Washington County was arrested in November, 2006 after federal agents seized illegal machine guns and sawed-off shotguns from militia headquarters and his home nearby.
On June 22, 2007, U. S. District Judge Jimm L. Hendren sentenced Fincher to 6. 5 years in prison with two additional years of supervised release and ordered him to pay a $ 1, 000 fine. Fincher was convicted in January of possessing machine guns and possessing a firearm not registered in the National Firearms Registration and Transfer Record. Fincher is now being held at a federal prison facility in Forrest City. The case caught the attention of attorney Stewart Rhodes, ex-firearms instructor and Internet blogger from Las Vegas. After following the case at the trial court level, Rhodes took the case to attorney Quentin Rhoades, of Montana, who agreed to represent Fincher pro bono during the appeal proceedings. Although he had never met Stewart Rhodes, the two men had worked on previous cases together. Rhoades said he agreed to take on the case for the good of the country. "I feel like it's a question of states' rights, a question of whether the federal government is using too heavy of a hand with people and whether it's following its own Constitution," he said. Rhoades filed a brief on Fincher's appeal in the 8 th U. S. Circuit Court of Appeals on Nov. 9, stating that Fincher is entitled to protection under the Second Amendment from criminal prosecution for violation of federal gun laws. Rhoades argues in the brief that the Second Amendment protects the right to bear arms where reasonably related to the maintenance of a well-regulated militia. "In this case, Fincher, as an active member of an paramilitary organization whose mission it is to train, equip and mobilize the militia for call-up in time of need, is therefore entitled to Second Amendment protection," the brief states. A response from the government is due Friday. Rhoades said he has had a couple of lengthy conversations with Fincher about the case and his interpretation of the Second Amendment. "He has some strong convictions about the rights of individual citizens of this country, the rights of states compared to the power of the federal government," he said. Rhoades said he finds Fincher's understanding of the law "very sophisticated, regardless of his hill country background. " "It's highly sophisticated and historically grounded, that's why I got involved," he said. "He may not be a lettered person, but he is very principled."
Rhoades said he admires Fincher and his beliefs.
"I think he deserves somebody to go to bat for him," he said. "He's put himself on the line for what he believes to be the interest of this country.
"If I can help out in some way, I appreciate the opportunity and consider it a privilege."
Rhoades also argued in the brief that Fincher is entitled to a public defender because his only asset is a life estate in a homestead. Fincher is financially unable to hire private counsel, he said, because he has no income and no assets he could sell to obtain cash.
Fincher completed a financial affidavit after he was arrested in June, claiming to be indigent and requesting a public defender. He indicated that he did not know the value of his property. At sentencing, he told Hendren he could not pay the $ 100, 000 appeal bond and had no property to use as collateral.
An investigation into Fincher's financial status revealed he'd transferred his 120 acres to his two daughters in January, between his arrest and sentencing, and that his property is worth between $ 240, 000 and $ 480, 000.
Hendren ordered Fincher to pay a total of $ 8, 357 to Dunagin and Blatt, who represented him at no cost. He also asked the 8 th U. S. Circuit Court of Appeals to remand Fincher's sentence in order to impose a larger fine.
Hendren said he acted on the belief that Fincher had no significant assets and imposed a fine much lower than the amount advised under the sentencing guidelines, which could have been as much as $ 250, 000.
Rhoades argued that the trial court has lost jurisdiction to re-sentence Fincher because he has already begun serving his sentence.
Rhoades is the fourth attorney to represent Fincher. Attorney David Dunagin was initially appointed to represent Fincher.
He represented him until Dec. 13, 2006, when he was allowed to withdraw in favor of attorney Oscar Stilley.
Fincher fired Stilley on March 8, 2007, citing irreconcilable differences. Fincher asked that Dunagin be reappointed as his attorney.
Dunagin declined to represent Fincher, however, and the court appointed Shannon Lea Blatt.
At this time, Fincher is without trial representation.
Rhoades said he has not agreed to be trial counsel for Fincher.
"If we win and get it reversed and he needs trial counsel, I will consider it," he said.
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