M.O.W.C.A.

The following are the applicable portion of the Docket Report and attendant files. There are two PDF files. I will comment tomorrow.

Oral Arguments were conducted yesterday in St. Louis, in the 8^th Circuit Court of  Appeals pertaining to the In Forma Pauperis status of Hollis Wayne Fincher. You may listen to the arguments using the link below:

U.S. vs Fincher, 8th Circuit, 17 Dec. 2009

Quentin Rhoades represents Wayne, pro bono, in this matter. Wendy Johnson represents the U.S. Government.

Quentin Rhoades has filed a Notice of Appeal (NOA) on the Order issued by District Judge Jimm Larry Hendren. This Order was issued as a result of the Hearing on Remand held on the 20^th of January.

Notice was filed April 2^nd, with the 8^th Circuit Court of Appeals.

The Docket is updated to reflect the changes.

There is a point in which one can be too close to something, so that objectivity cannot be obtained or arrived at, and the emotions countervail any attempt to render a proper analysis of the situation. I pray that is not the case here. In the case of U.S. v. Hollis Wayne Fincher, there are many things that have occurred which cause one to seriously reevaluate the idea that we actually have a justice system. I would that this be not the case, but the evidence weighs heavily against my desire.

So it is with this latest round of hearings and subsequent rulings. On Thursday, the 26th of February, Judge Jimm Larry Hendren ruled on the remand from the 8th Circuit Court of Appeals concerning Mr. Fincher’s In Forma Pauperis status. That this ruling would be against Mr. Fincher was to be expected, knowing that Judge Hendren would rule against Mr. Fincher if he could at all. Moreover, since the 8th Circuit enshrined into law a fiction by ruling the appraisal and its unchallenged introduction into the record to be valid and a “fact,” it was expected that climbing Mount Everest would be easier that Judge Hendren ruling in favor of Mr. Fincher. What was not expected was the vendictive language employed by Judge Hendren in ruling against Mr. Fincher. It is as if Judge Hendren has a personal vendetta against Mr. Fincher.

How can I say this? Consider the following quote from the Order issued on the 26th of February:

Evidence taken at a previous hearing shows that after Fincher was convicted — and while he was facing sentencing with the prospect of a fine that could be as much as $250,000 — his family consulted attorney Jack Butt about the preparation of a deed conveying the Property to the Finchers’ two daughters. Transfer was accomplished by the Quitclaim Deed of January 29, 2007. Recited consideration was $1.00 and “other good and valuable consideration.” The Quitclaim Deed further recites “NO REVENUE STAMPS REQUIRED. TRANSFER IS BY GIFT.”

Although both the Finchers and their daughters denied that the prospect of the fine had anything whatsoever to do with this conveyance, Fincher admitted that he wanted to get the property “out of my hands,” and Fields admitted that they discussed the fact that if there was a fine and Fincher did not pay it, the Property could be taken to pay it. At an earlier hearing, Fincher placed in evidence a letter from Butt to Assistant United States Attorney Chris Plumlee. The letter references a conversation between Butt and Plumlee about the fact that Fincher had been convicted; that he owned “a family farm in northwest Arkansas which has been in the family for many generations”; and that Butt had “been requested by the family to accomplish a transfer that would ensure its continued ownership by the family.” The testimony of Fincher and Fields, and the Butt letter, along with the close temporal coincidence of Fincher’s conviction and the conveyance, are clear and convincing evidence that Fincher was trying to divest himself of the Property so that it would be unavailable to pay a fine in his criminal case. The Quitclaim Deed was fraudulent as provided in A.C.A. §4-59-204(a)(1), because it was made with actual intent to hinder the government — should it become a creditor by virtue of a fine — from receiving payment. It was fraudulent as provided in A.C.A. §4-59-204(a)(2), because it was made without receiving reasonably equivalent value and Fincher reasonably should have believed that he would incur a debt (a fine in the criminal case) beyond his ability to pay when it became due.¹

Now here is a novel thing, tell the government exactly what you are going to do, so you can defraud the government with the action you just told them you were going to do. The logic is convoluted beyond belief. The really interesting thing about this is that Wendy Johnson, the Assistant U.S. District Attorney KNEW about the transfer of the land, and raised absolutely no objection at the Sentencing Hearing:

The fine range is twelve thousand five hundred dollars to a hundred and twenty-five thousand dollars. Ms. Johnson, I have in mind a departure on the fine range. I am not persuaded, given Mr. Fincher’s circumstances and that of his family, that he is able to pay a fine within the range. I think it would be an unduly harsh — hardship on him and his family, and I have in mind of awarding him a fine of one thousand dollars, which is a considerable departure out of that guideline range. And I’ll certainly hear your objection if you have any.
MS. JOHNSON: I have no objection, Your Honor.²

Now, in case you ask, who is Chris Plumlee? Well, he is the wet behind the ears attorney who assisted Wendy Johnson at Wayne’s trial.

THE COURT: The Court calls up for trial by jury the case of the United States of America versus Hollis Wayne
Fincher. The matter comes on today for trial by jury pursuant to previous Orders of the Court. Is the United States present and ready to proceed?
MS. JOHNSON: We are, Your Honor.
THE COURT: Ms. Johnson, good morning.
MS. JOHNSON: Good morning.
THE COURT: I understand you and Mr. Plumlee will be representing the United States. Is that correct?
MS. JOHNSON: That’s correct, Your Honor.
MR. PLUMLEE: Yes, Your Honor.
THE COURT: Mr. Plumlee, good morning.
MR. PLUMLEE: Good morning.³

In fact, it was Chris Plumlee who took the lead in questioning Mr. Fincher at the in-camera hearing:

THE COURT: Any cross?
MR. PLUMLEE: Yes, sir.
CROSS-EXAMINATION BY MR. PLUMLEE:
Q. Good afternoon, Mr. Fincher.
A. Yes, sir.
Q. Mr. Fincher, I’d like to talk a little bit about the militia. What are — what was the date it was founded?⁴

Now, can we believe that Chris Plumlee totally neglected to tell Wendy Johnson that Hollis Wayne Fincher just transferred 120 acres of property to his two daughters, knowing full well that people who are awaiting sentencing may be fined, and may try to hide assets to avoid fines?

Are Wendy Johnson and Chris Plumlee that stupid? Even if Ms. Johnson were not totally up to speed, surely it would have rung a bell with her at the Sentencing Hearing that a DOWNWARD departure in the fine, to the tune of $11,500.00 could not be warranted as the Finchers transferred 120 acres of land not 3½ months before?

Perhaps it is that Judge Hendren is spinning the facts just a bit here.

To be continued . . .

1. pp. 8-10, IFP Order, dated 02/26/2009 [↩]
2. pg. 751, Transcript [↩]
3. pg. 107, Trial Transcript [↩]
4. pp. 440-441, Trial Transcript [↩]