Sunday, July 15, 2007

Fincher Denied Appeal Bond

Militia leader free until reporting to prison

FAYETTEVILLE -- A Washington County man convicted of having illegal machine guns won't be allowed out of jail while his conviction and sentencing are on appeal, a judge ruled Friday.

Hollis Wayne Fincher, 61, was convicted in U.S. District Court in January on a count of possessing a machine gun and possessing an unregistered firearm.

U.S. District Judge Jimm Hendren sentenced Fincher, 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 filed motions Monday asking that he 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 on Friday denied the motion to remain free while the appeal runs. Fincher is being allowed to remain free on $100,000 bond until he reports to federal prison July 24.

Hendren said federal law is aimed at not allowing convicted persons to remain at large while pursuing their appeals. The judge said he doesn't think Fincher is a flight risk, but he also doesn't think Fincher has a substantial chance of winning on the points he plans to raise on appeal.

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.

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.

Thanks to The War on Guns for the update!