After hearing arguments from both sides during a teleconference sentencing hearing, Judge Amul Thapar split the different between the defense’s request for no supervised probation and the government’s request for supervised probation for Megan Rice, Greg Boertje-Obed and Michael Walli.
In the end, the judge sentenced each to two years of “unsupervised” supervised probation with only three conditions
There are no other restrictions on their activities. When defense attorneys asked if they retained their first amendment right to protest nuclear weapons at facilities, the judge said, “Absolutely, as long as they don’t enter the facility.”
The judge also declined to reduce or drop the demand for $52,000 in restitution to the taxpayer.
The three have until Friday, September 18, to report to their local probation office.
For those who want to hear the proceedings during the resentencing hearing/teleconference for the Transform Now Plowshares three, Michael Walli, Megan Rice, and Greg Boertje-Obed, the court today provided an access number. Please be reminded there will be no hearing in Knoxville; in fact, the judge is unlikely to be in Knoxville himself, since he regularly sits in Kentucky.
Here is the court’s information.
Telephonic Status Conference held before District Judge Amul R Thapar: Status Conference as to Michael R. Walli, Megan Rice, Greg Boertje-Obed held on 9/4/2015.
(1) A sentencing hearing is SCHEDULED for Tuesday, September 15, 2015 at 10:00 a.m.
(2) This hearing will occur via teleconference. (3) Members of the public may dial-in to this conference call by following these steps:
(A) Call AT&T Teleconferencing at 1-877-873-8017;
(B) Enter access code 8284218 (followed by #); and
(C) When requested, enter security code 1234 (followed by #)
(3) To prevent any technology problems, the Court asks members of the public not to dial-in until 9:55 a.m.
The September 15, 2015 resentencing of Megan Rice, Michael Walli and Greg Boertje-Obed on their remaining depredation conviction for their July 2012 Transform Now Plowshares action at the Y-12 Nuclear Weapons Complex in Oak Ridge, TN, will be held by teleconference according to Judge Amul Thapar.
Bill Quigley sent an email to supporters today noting the prosecution has indicated it will NOT ask for more prison time. The three have already served more time than sentencing guidelines recommend for this offense. Quigley reported the prosecution does intend to ask for an extended period of probation, from one to three years.
Attorneys representing Greg, Megan and Michael, including Quigley, will ask the judge to forgo probation and to drop the restitution required in the original sentencing as well.
The Transform Now Plowshares activists were originally convicted of two charges—depredation of government property and sabotage; the latter carried a heavier sentence. Because of the sabotage conviction, the three were immediately remanded to federal custody and were not eligible for parole or bond while their appeal was pending.
The sixth circuit court of appeals heard oral arguments earlier this year and, in May, overturned the sabotage conviction and vacated the sentences for both charges, noting the prison time served already exceeded the recommended sentence for the depredation charge, hence the re-sentencing. The three were released on recognizance within a week of the appeals court’s ruling.
In an amazing turn of events, the Sixth Circuit Court of Appeals this evening ordered the immediate release of Megan Rice, Michael Walli and Greg Boertje-Obed, the Transform Now Plowshares activists who were serving time in federal prison for their action at the Y12 Nuclear Weapons Complex in Oak Ridge, TN to protest plans for a new multibillion dollar nuclear bomb plant there.
Things unfolded rapidly this afternoon.
At 4:00pm word came from Bill Quigley, attorney for MGM, that the government had filed a notice that it would not oppose the release of Greg, Michael and Megan pending resentencing. The government’s notice was interesting—it included notice to the court that, when resentencing did happen, the government would not be seeking terms of imprisonment greater than the time already served. But, the prosecutor said, the court could not release the defendants unless it determined their were “extraordinary circumstances.” The government’s brief went on to note the issues cited by the defendants did not constitute ordinary circumstances. There was a way, though, the government pointed out, under a different statute, and then noted that another court had ruled keeping a defendant unjustly incarcerated beyond the time they would be expected to serve would be an extraordinary circumstance. “We defer to the Sixth Circuit” said the government.
Then, just after 7:00pm this evening, the Sixth Circuit ordered the immediate release of Megan, Greg and Michael on their own recognizance. The order is not available at this time, but the word from Quigley is reliable. In a delightful serendipity, Monday is Greg Boertje-Obed’s birthday—with any luck, he will be home to celebrate it with his family!
Everyone seemed to have the same question following the news that the Sixth Circuit Court of Appeals had thrown out the sabotage charge against Michael Walli, Megan Rice and Greg Boertje-Obed and vacated the sentences on both the sabotage and the depredation charges. The court noted if the three had been sentenced only on the depredation charge, according to the sentencing guidelines, they would likely have received shorter sentences and would have already served their full time. So the question of the day: When are they getting out?
A fair question—they now are being held in federal prison with no sentence at all.
Within days of the Sixth Circuit’s ruling, Judge Amul Thapar, who handled the original case, convened a conference call with the lawyers from both sides. He apparently told them he had not yet been assigned the case, but he wanted to set a schedule in case he was. The result was a July 8 date set for resentencing. (The Court’s decision to throw out the sabotage charge and vacate the sentences could be appealed by the prosecutor, a decision we are told would be made not in Knoxville, but in Washington; the feds have two weeks to file a notice of appeal, then as much as 90 days to actually file the appeal, after which the defense gets time to respond, and the feds get more time for a final response—you can see how this would drag out with Greg, Megan and Michael still in prison.
But the case resides still in the Sixth Circuit (Thapar, who is a federal judge in Lexington, KY, originally drew the case because the Knoxville court had a vacancy on the bench; the judge who had been assigned the case had retired; Thapar drew the reassignment. That empty seat in Knoxville has since been filled, so it is not absolutely certain that the case would be remanded to Thapar for re-sentencing.) So, long story short, attorneys for MGM filed a motion with the Sixth Circuit on Thursday, May 15, asking for immediate release.
The Sixth Circuit wasted no time. Within hours, it issued an order requiring the government to respond to the motion for immediate release by noon on Monday, May 18.
That is where things stand at this moment.
Here is a copy of the Defense Motion for Immediate Release:Def Motion for Immediate Release 5-14-15
Appeals court overturns sabotage convictions of Transform Now Plowshares activists, vacates sentences of Megan Rice, Michael Walli and Gregory Boertje-Obed on all charges and remands for resentencing.
Court suggests decision may lead to release of Rice, Boertje-Obed and Walli
8 May 2015
for immediate release
The Sixth Circuit Court of Appeals handed down a decision in favor of the Megan Rice, Michael Walli and Greg Boertje-Obed who were convicted in 2013 of sabotage for their July 28, 2012 Transform Now Plowshares protest of nuclear weapons production at the Y12 Nuclear Weapons Complex in Oak Ridge, Tennessee.
“The purpose of the action of Michael, Megan and Greg was to call attention to the ongoing production of thermonuclear weapons components at the bomb plant in Oak Ridge and, more specifically, to oppose plans to build a new, multi-billion dollar bomb plant—the Uranium Processing Facility—at Y12,” said Ralph Hutchison, coordinator of the Oak Ridge Environmental Peace Alliance. “They were nonviolent protestors in the tradition of Gandhi, not saboteurs. We are pleased the Sixth Circuit appreciated the difference.”
The court ruled 2-1 in a decision handed down on May 8, 2015, that the government failed to prove the Transform Now Plowshares activists intended to “injure the national defense,” a requirement for conviction under the sabotage act. Disposing of the government’ arguments one by one, the court finally states simply: “The defendants’ convictions under §2155(a) must be reversed.”
The circuit court had the option of merely reversing the sabotage conviction but letting the defendants’ sentences stand on the other charge for which they were convicted—depredation of government property. Noting the lesser charge would have resulted in lesser sentences—the men received 62 month sentences and Megan Rice a sentence of 35 months—under federal sentencing guidelines (“it appears that the guidelines ranges for their § 1361 convictions on remand will be substantially less than their time already served in federal custody.“), the court chose to vacate all sentences and remand the their cases for resentencing on the remaining depredation count.
Michael Walli is currently serving his sentence at McKean federal prison in Bradford, PA; Greg Boertje-Obed is in Leavenworth, KS; Megan Rice is in federal prison in Brooklyn, NY. Her release date is currently in mid-November, 2015.
At this time, it is not clear when resentencing will take place.
for more information
Ralph Hutchison 865 776 5050
Paul Magno 202 321 6650
March 12, 1930, Ahmedabad, India. Mahatma Gandhi and a company of nonviolent satyagrahi set out from the Sabarmati ashram and began his march to Dandi where, twenty-four days later, he would make hold in his hands salt made from the ocean water and declare, “Here I ruin the British empire.”
It was an audacious faith in the power of nonviolence that carried Gandhi on that walk, and that powered him for another seventeen years before the miracle was realized and India was freed from British colonial rule.
Eighty-four years later, to the day, the power of nonviolence entered into the Potter Stewart federal courthouse in Cincinnati, Ohio, where three men sat in black robes to hear arguments challenging the sabotage convictions of Gregory Boertje-Obed, Megan Rice and Michael Walli in the Transform Now Plowshares action. Appellate arguments usually echo in a courtroom empty but for judges, a clerk and the lawyers. But on March 12, 2015, the pews began to fill at 8:30. By 9:00 there were more than forty people in the courtroom—three dozen Plowshares supporters and another dozen high school students on a field trip who were about to be educated about the legal process, and maybe be prompted to think about nuclear weapons and the power of nonviolent direct action in the process.
We had made our way to the courthouse in the early morning darkness after skimming a thin sheet of frozen dew off the windshields of our car. Fortified by oatmeal, some amazing english muffins, homemade granola and a selection of teas and coffee—thanks, John Blickenstaff!—we began to pass out flyers to passers-by. The courthouse was located alongside the downtown bus terminal, providing a convenient distribution point.
Within minutes, others arrived—Ardeth, Carol and Liz from Jonah House; Kathy Boylan from Dorothy Day Catholic Worker in Washington, DC and Paul Magno; four Sisters of Charity from Mt. Saint Joseph just outside Cincinnati; members of footprints for peace; half a dozen OREPA members from Knoxville; Brian Garry from Cincinnati; Shannon from Xavier. We greeted the Quigleys who traveled up from New Orleans for the hearing. It was a nice mini-reunion of folks who enjoyed the grand spirit of community of the trial and sentencing. Those of you who weren’t able to join us were missed. Some brought kinfolk with them.
The Veterans for Peace banner was unfurled; Ellen Barfield and Eve Tetaz held it on the corner in the chilly morning air. When we ran out of flyers, we went inside.
At 10:10 our case was called. Placards on the bench identified Judge Kethledge on our left; Judge Boggs in the middle; Judge Helmick on our right. Flanking the three living judges were two other elderly white judges, portraited in their robes. On the side wall, another judge l’oeil, and behind us, on the back wall, two much-larger-than-life judges watched over the proceedings from inside their frames. The courtroom was all dark paneling reaching to within four feet of the ceiling. The paneling was rectangles; the recessed lights were squares, the benches were mitered corners; there were precious few curves in a room dedicated to the sharp angles of the law.
Each side had fifteen minutes to argue. Mark Shapiro delivered oral arguments for our side and he was brilliant. Assistant District Attorney Jeff Theodore traveled from Knoxville to make the government’s case.
The purpose of our appeal was primarily to challenge the use of the sabotage statute to convict Megan, Greg and Michael—it is the reason they got such long sentences. Piece by piece, Marc peeled back the government’s rationale, applying case law and referring repeatedly to the intent of Congress in passing a statute meant to convict people who interfered with US war-making capability in war time. We argued the government has misapplied the statute, that interfering with Y12 (the Oak Ridge bomb plant) was not the same as interfering with the “national defense,” that the defendants general aspiration to bring about global nuclear disarmament did not equate to an intent to injure the national defense, and more.
Marc began by providing a clear accurate description of three senior citizens who trespassed at Y12 and damaged property. If that were the only charges they faced, he said to the judges, we probably wouldn’t be here. “But the government went further. They said that acts of nonviolent civil disobedience are equal to sabotage. They said these people, who sang, prayed and broke bread…that was not what Congress had in mind when they passed 2155 in 1918. They were concerned with damage to the instrumentalities of the national defense in a time of war.”
Judge Boggs interrupted (appellate hearings are not exercises in good manners…) to ask how Shapiro distinguished between slight harms, which Congress did not intend to include, and larger harms. He referenced the missile silo actions of Carl Kabat and Ardeth Platte. Marc said one could consider the instruments brought in; one could also consider the immediacy of the effect of the action. A missile silo had to be able to respond within minutes to an order—a bomb plant that manufactures one component of a nuclear weapon is several steps away from a sense of immediacy.
There was a back and forth between Shapiro and Boggs in which Marc deftly steered the conversation toward the issue of intent.
Judge Kethledge picked up: Well, there are two ways of defining intent…
Marc: Yes, objective intent and actual intent.
Kethledge: In this case, I understand they brought in little hammers.
Boggs: And they didn’t know about the shipment of material that was diverted.
Shapiro: There is no dispute about that. They could not have foreseen that they would get all the way in, not past one fence or two or even three, but through four. It was a surprise to everyone that security was extremely flawed. What they could expect was they could expect to be stopped. They did expect that. They hoped they would have a chance to educate the employees there about weapons of mass destruction. This gets to intent. Beyond that, no one expected this action would bring an end to nuclear weapons or stop production.
Kethredge: When they unfurled the banners, did they intend to eliminate nuclear weapons? Proximately?
Shapiro: No one could intend that.
Boggs: But they don’t have to eliminate all nuclear weapons to injure the national defense.
Shapiro: But Congress is clear. Slight injuries are not included in this statute.
Boggs: They took a chunk out of the wall.
Shapiro: Which everyone would see is a symbolic act.
Time was called, Marc having reserved four minutes for rebuttal.
It was Theodore’s turn. He tried to take the offensive. “There was sufficient evidence to sustain the sabotage charge; there are two elements, and they are only disputing one. To interfere with, injure or obstruct the national defense is enough. They surreptitiously entered, cut the fence, crossed the PIDAS security zone, and targeted the Highly Enriched Uranium Materials Facility. They brought a banner. They read an indictment for war crimes,” he said, his voice rising with a little emotion at the end.
Kethredge cut in. “Sounds more like a protest than sabotage.”
Theodore: It was more than that. They had the desire, and then they took action.
Kethredge: Do you not recognize a distinction between motive and intent? If a man shoots his wife to get her money, his intent is to kill his wife, but his motive is to enrich himself.
Theodore: There is a difference to the extent. I don’t agree with their interpretation of the case they rely on.
Kethredge: Let’s look at the particulars. How big were the hammers?
Theodore: About a foot.
Kethredge: And they hammered on the building. Does that show an intent to injure the national defense? Banners?
Theodore: They intended to disrupt the national defense.
Judge Helmick spoke for the first time: “How is that accomplished, at that time of day (4:00am), when the damage they did was $8,500, at a time when no one was working…”
Theodore: They could have reasonable foreseen…
Kethredge: But reasonably foreseen has been defined as practically certain. Could they be practically certain that they would stop shipments from coming in, or that the bomb plant would be shut down for two weeks?
Theodore: They could be sure of a strong response.
Kethredge: They would more likely be certain they would be shot.
Theodore: Which did not happen, thank God. But the intent was to overall disarm, to enter.
Judge Kethredge then proposed a scenario where 20 ardent disarmament proponents undertook to lay down on the public road leading into the bomb plant to block a shipment of nuclear materials. “Suppose it takes a long time to remove them, and you can’t have bomb material waiting by the side of the road for a couple of hours, so they have to turn around and go back, three or four states away. Would those people be guilty of sabotage?”
Theodore: They would meet the second element, intent to injure.
Boggs: Intending to keep nuclear materials from getting in.
Theodore: They have to willfully intend to injure the national defense. If they indicated their intent…these people said at trial and in the media…
Boggs: But there was a time, a long time ago, when people would lie down in front of trains. Was that obstructing and interfering?
Theodore: They have all the right in the world to be against nuclear weapon and to protest. But when they take action and they try to interfere…
Kethredge: Well, standing on top of the missile silo door is different. What is missing is the proximate effect and substantiality. It’s de minimis, in terms of expectations. It is less proximate than Platte, right?
“It is,” Theodore admitted, then argued on a parsing of the statute to defend his position that Y12 is a national defense facility. “The bottom part refers to the military and armed forces. Everything above that is broader.”
Kethredge cited a recent case, Bond, and noted an uncanny parallel. In Bond, the defendant attempted to poison a person by applying chemicals to a doorknob, a little at a time. The government charged the defendant with using chemical weapons. Kethredge said, “The court said, ‘We’re not going to read chemical weapons that closely,’ even though there were chemicals that were used. Is it fair to say, banners, hammer, spray paint and blood—those are instruments to harm the national defense?”
Theodore could not back down now. “They could be—“
“Could be?” Kethredge cut him off. “These people are in prison right now.”
In that instant, humanity entered the courtroom that usually dealt only in verbal interpretations of legal language, hypothetical cases and the intentions of legislatures long since past.
Kethredge continued, “I’m inclined to the view of Chief Justice Roberts that we have to take a step back from a definition of national defense so eggshell that banners…
Theodore tried to argue for a broad reading.
Kethredge pushed back. “Banners? Bread? To injure the national defense?
Theodore: Or obstruct.
Theodore tried to present an interpretation of another case to suggest a broad application of the law. “We would not have these weapons or the national defense without Y12,” he said. “The statute should be interpreted to fulfill its purpose.”
Boggs noted one of the cases being used, Ortiz, ended up with the court requiring the government to go back to “get better intent.” Theodore’s time was running out. “We have to make sure the military establishment is prepared,” he said. Boggs took the last word: “It takes a long time to get from Y12 to a bomb.”
Now Marc Shapiro rose for his last few minutes. Boggs asked him to address the de minimis argument by creating a hypothetical poisoning of 20 soldiers at Fort Leavenworth. Is that interference?
Marc parried deftly and returned to the question of instrumentality—it could not be lost on the court that banners and bread were not poison and guns.
Marc noted: The government says they did this surreptitiously, but the whole point was exposure. They may have gotten in at night, but they were not trying to dilute the Uranium and hide out to see what happens. The point is, in this case, they intended to be exposed.
There was a pause and he closed, plain and strong: “We ask the court to reverse the sabotage conviction.”
We rose to file out while the lawyers for the next case stepped to the lecturn. I turned at the door to look back—the courtroom empty except for three people in suits, waiting their turn to address the judges.
There are other parts to the appeal, and they were all masterfully argued in the written briefs, but the oral arguments focused on the parts the judges felt were at issue. It is impossible to know from what we saw in court how the judges will rule. It did seem clear that no weaknesses in our arguments were exposed, and the judges seemed skeptical of Theodore’s arguments.
There is also no way of knowing when we will get a ruling from the court. We can hope, since at least one judge recognized the decision has implications for people who are incarcerated, they may have incentive to rule sooner rather than later.
If the TNP three are successful on appeal, the most likely result would be a resentencing, with the sabotage charge taken out of the picture. That would cause an adjustment in the calculations used to determine maximum and minimum sentences and could very likely result in reductions for Megan, Michael and Greg.
In the aftermath of the hearing, as we gathered at Panera Bread to speculate, we were reminded of the generosity of the lawyers for Orrick, Herrington and Sutcliffe—Shapiro, Thomas McConville, and Judy Kwan, who briefed the appeal, and Bill Quigley, always faithful and almost always hopeful. It was a great team, and a very good day for truth in the courtroom, at least a slice of the truth in the courtroom in Cincinnati.
Lawyers for the Megan Rice, Greg Boertje-Obed and Michael Walli will have 15 minutes to present oral arguments before the Sixth Circuit Court of Appeals in Cincinnati, Ohio, on Thursday, March 12, 2015 at 9:00am. Counsel is expected to ask the court to vacate the convictions of Megan, Michael and Greg on the charge of sabotage, arguing the statute was wrongly applied in this case.
Those who attended the trial and sentencing in Knoxville may recall the judge himself expressed concerns about the charge, but in the end he let it stand.
The court has scheduled 30 minutes for oral arguments, which is standard procedure. The judges are not expected to issue a decision for some months.
It is not clear whether a decision in favor of the TNP three would result in a new sentencing hearing and/or reductions of sentences for the three. In any case, the process might not be concluded in time to affect Megan’s term since she is due to be released in November of this year.
If you are interested in attending the hearing, the courthouse is at 100 East Fifth Street in downtown Cincinnati. You should arrive no later than 8:30am in order to clear security. Be sure to bring a photo ID.
Two years after Megan Rice, Greg Boertje-Obed and Michael Walli entered the Y12 Nuclear Weapons Complex in Oak Ridge, TN to issue an indictment against the continuing production of nuclear weapons components there and to oppose plans for a multi-billion dollar Uranium Processing Facility which would produce thermonuclear cores for US weapons, and fifteen months after their conviction in federal court in Knoxville, TN on charges of sabotage (at which point they were held in jail), and six months after they were sentenced to prison terms ranging from three to five years, lawyers for the Transform Now Plowshares resisters have filed an appeal in the Sixth Circuit court of appeals in Cincinnati, OH challenging the government’s use of the Sabotage Act, and the prosecutions efforts to prejudice the jury by inappropriately presenting testimony of prior offenses and invoking a comparison of the nonviolent demonstrators to 9/11 terrorists.
The appeal (you can access it below or under the Legal Arguments button above) asks the Sixth Circuit to reverse the defendants’ convictions. The arguments articulate what many of us who witnessed the proceedings firsthand felt during the trial—the prosecution sought to twist the law in a way that would achieve a conviction and, in so doing, subverted justice. “How can this be?” we wondered.
It turns out it can’t be, at least not legally. The appeal cites Berger v. United States in pointing out that “a prosecutor’s interest is not simply to ‘win a case, but that justice may be done.’ While he (sic) may strike hard blows, he may not strike foul ones.”
The appeal asserts that the prosecutor knowingly and wrongly conflated harm with the Y12 Nuclear Weapons Complex with harm to the national defense, and the court failed to distinguish between the symbolic action of the Transform Now Plowshares resisters and previous Plowshares actions that damaged actual apparatus of nuclear attack. The appeal also notes that motive—wishing to advance the cause of global nuclear disarmament—is not the same as an intent to disrupt Y12 operations.
The appeals team asks the sixth circuit to hear oral arguments. The appeal was prepared by the law firm Orrick, Herrington & Sutcliffe LLP with assistance from Bill Quigley and Anna Lise Lellilid-Douffet from the original defense team.