M.O.W.C.A.

It has come to my attention of late that the BOP in Forrest City is not upholding its responsibilities with regard to Wayne. Even before Wayne’s arrest, he had health issues that included Pericardial effusion (excess fluid around the heart). The Federal Government knew this as soon as they took Wayne into custody. Wayne must take medication to reduce the fluid build-up around his heart. The specific drug he takes is Lasix.

However, over the last month, the people who run the Forrest City facility claim they cannot get (or afford) the drug Lasix so Wayne cannot get his medication. Hence, they have refused to give Wayne the medication he requires.

However, it cannot be true they have no funds to get a drug that is on Wal-mart’s $4.00 list. Somehow, I have a very difficult time believing that the Federal Government cannot get the drug for less than Wal-mart gets it. I know the government is “broke,” but somehow they find money for everything else under the sun. Here they have a clear-cut responsibility, and they are refusing to uphold it.

The problem can be life-threatening, and it would be very beneficial to Wayne to get his medication as soon as possible.

Any and all correspondence regarding Wayne must include the following:

Hollis Wayne Fincher
07863-010
Federal Correction Complex ‘Low’
Forrest City, Arkansas 72336

The address for the Forrest City Facility staff follows:

STAFF NAME
FCI FORREST CITY LOW
FEDERAL CORRECTIONAL INSTITUTION
P.O. BOX 7000

FORREST CITY, AR  72336

Wayne has a little over two years left, with a release date of  08-04-2012. It would be very good if he made it.

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

It has come to the attention of a few that the Volokh Conspiracy posted an article stating that it is time for the unorganized militia to reappear, titled The Unorganized Militia Once Again is Needed. Some are of the opinion that the Obama administration would oppose that.

Actually, every administration for the last 100 years would have likely opposed the resurgence of the unorganized militia. Certainly we can say both Bushes and Clinton opposed it. Please remember that Wayne Fincher was prosecuted under Bush Jr. The Federal Government’s attitude toward the unorganized militia is perfectly exemplified in the following excerpt from the in-camera hearing during the trial of Wayne Fincher. The questioner is Chris Plumlee, assistant attorney to Wendy Johnson, Assistant US District Attorney for the Western District of Arkansas. Wayne is the respondent.

I think the government’s attitude toward the unorganized militia is loud and clear:

Q.    And so what state agency is it that you answer to?
A.    The governor or the legislative body.
Q.    Okay.
A.    And if the sheriff would have an emergency, he might or he might not choose to call us into service.
Q.    How many times have you been called up by the governor of the state of Arkansas?
A.    None.
Q.    Who in the militia is designated to be contacted by the governor in time of a call-up?
A.    Well, the commander, Paul Smith, would be.
Q.    Okay, so I presume — what’s the name of the person at the  governor’s office who has your telephone numbers and Mr. Smith’s telephone numbers so they can call you up if they need you?
A.    I’m not sure, but all they’d have to do is call the sheriff of Washington County, and that’s their duty to, not mine.
Q.    Well, you’ve sent them a lot of documents notifying –
A.    Yes.
Q.    – them what you believe the law is and your declarations and stuff.  I mean, I don’t see your phone number on here any-where.  I mean, how is the governor supposed to contact you in the time of a crisis?
A.    Believe me, the governor has the ability to contact us if he so desires.
Q.    Okay, and the first declaration you sent to the governor, which I think is Defendant’s 1-A, was sent in 1998, correct?
A.    I believe that’s correct.
Q.    So between 1994, the foundation of the militia, and 1998, how was the governor supposed to call you up at that time?
A.    Like I say, if the governor so chooses, he can — he can put out a public broadcast that all militia appear at a certain place, and that’s within his authority, and that’s his respon-sibility.  And I don’t have to stand and wave a flag waiting for the governor to call me.  It’s his duty to take care of this thing on behalf of the state.
Q.    Okay, so would you concede to me that you’re not — you’re not run by the State of Arkansas, you’re run by each other in the militia of Washington County?
A.    No, sir.  We’ve read all the laws that we could find pertinent to the militia and we obeyed those laws.
Q.    But, again, you’re not operated or sanctioned by the State of Arkansas; is that correct?
A.    That’s not correct, sir.
Q.    Okay.  By the governor’s office?
A.    By Article 11.  Whether the governor likes it or not, Article 11 declares the people in a certain range are in the militia, and it also calls for volunteer companies, the infantry, calvary, and artillery.  If the governor — if the legislative body is in session, then the legislative body would call in in however they choose, and that’s their option and their duty.
Q.    And, again, has anyone in the militia had contact with their legislators about providing your telephone numbers and things of that nature so they can contact you in the event they need to call you up?
A.    I’ve read in some of the codes that if they want to contact, they’d probably put out broadcasts, and the people are expected to go to that.
Q.    Would it be like a radio broadcast or television?
A.    Well, it would be — it would depend on what the situation was.  They might put it in the newspaper.  If it was an emergency, they might just broadcast a certain class of men.  They might not want a thirty to forty-five.  They might say all men between — it’s their option.
Q.    Well, I mean, wouldn’t you be pretty disappointed if you put all this effort into the militia and you don’t get called up?
A.    It’s not about whether I’m pleased or disappointed, sir.  It’s about a long-term project to protect this state.  Whenever the state of Arkansas joined in with the United States, it agreed that it would not keep a standing army, and it was guaranteed by the federal government that this republic would be unmolested in having its militia.

Need I say more?

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 [↩]

The Court Documents page is updated

The District Court docket is updated.

The IFP documents tracking section is updated to reflect the latest round of briefs.

The Hearing on Remand transcript is posted.

I told David at WoG he could post it and make it available over there until I got time to give it a permanent home.

Here is its (MOL) permanent home

Without comment (which is usual) the Supreme Court of the United States denied the Writ of Certiorari filed in the case of U.S. v. Hollis Wayne Fincher.

The questions presented were litmus test questions, and make a statement whether accepted, or rejected. The Court has spoken loud and clear. The convoluted ruling of D.C. v. Heller will stand as an empty ruling, designed only to soothe the feathers of gun owners, instead of actually upholding this basic human right.

After all, you have the RIGHT to provide for your own defense.

The Supreme Court docket for the appeal is found here.