photo by Ralph Hutchison
A three-judge panel of the Sixth Circuit Court of Appeals has overturned the sabotage convictions of Megan Rice, Michael Walli and Greg Boertje-Obed, the Transform Now Plowshares nuclear disarmament activists who were arrested inside the Y-12 nuclear weapons complex at Oak Ridge, Tennessee on July 28, 2012. They were convicted in May, 2013 of sabotage and depredation of government property for cutting through four fences to reach an enriched uranium storage fortress where, the panel notes, “the trio spray-painted antiwar slogans, hung crime tape and banners with biblical phrases, splashed blood, and sang hymns.”
In its 2-1 decision, the panel found the three lacked the requisite intent of an accused saboteur to “injure the national defense”, because their actions, while damaging property and motivated by a desire for disarmament, did not functionally affect the nation’s ability to initiate or defend attacks.
In its order, the panel vacated the activists’ sentences on both charges and ordered a re-sentencing because the trial court had taken the convictions together when deciding to sentence Boertje-Obed and Walli to 62 months on each count, and Rice to 35 months on each count, to be served concurrently. Considered alone, the panel said it appears that under the guidelines, a new sentence on the depredation charge alone “will be substantially less than their time already served in federal custody.”
The downside for the prisoners is that before a new sentencing hearing can even be scheduled, the government has 15 days to seek a rehearing before the Sixth Circuit Court of Appeals or 90 days to appeal to the U.S. Supreme Court, a move that would keep the three behind bars in legal limbo even longer.
Michael Walli is currently serving his sentence at McKean federal prison in Bradford, Pennsylvania, Greg Boertje-Obed is in the U.S. penitentiary at Leavenworth, Kansas; and Megan Rice is in federal prison in Brooklyn, New York. Her release date is currently in mid-November, 2015.
Cards and letters can be sent to them at their prison addresses, found here.
SCROLL DOWN FOR UPDATES.
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PRESS RELEASE FROM RALPH HUTCHISON, OREPA
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.
Media coverage:
From the Knoxville News Sentinel here
Update from the Knoxville News Sentinel here
From Fox News here
From BBC News here
From the San Francisco Chronicle here
From The Guardian here
From the New York Daily News here
From CounterPunch
Nuclear Weapons Protesters’ Sabotage Conviction Overturned
An Appeals Court has vacated the sabotage convictions of peace activists Greg-Boertje-Obed, of Duluth, Min., and his co-defendants Michael Walli of Washington, DC, and Sr. Megan Rice of New York City. The 6th Circuit Court of Appeals found that federal prosecutors failed to prove — and that “no rational jury could find” — that the three had intended to damage “national defense.”
In July 2012, Greg, Michael and Megan clipped through four fences and walked right up to the “Fort Knox” of weapons-grade uranium, the Highly Enriched Uranium Materials Facility inside the Y-12 complex in Oak Ridge, Tenn. Uranium processed there puts the “H” in our H-bombs. With three hours before they were spotted, the nuclear weapons abolitionists painted “Woe to an Empire of Blood” and other slogans on several structures, strung banners, and celebrated their luck in catching the nuclear weapons system asleep at the wheel. When a guard finally confronted them, they offered him some bread.
They were convicted in May 2013 of damage to property and sabotage and have been imprisoned since then. Boertji-Obed, 59, and Walli, 66, were both sentenced to 62 months on each conviction, to run concurrently; and Sr. Megan, who is 82, was given 35 months on each count, also running concurrently.
Questions about the legal status of nuclear weapons were not on appeal, but rather the issue of whether the Sabotage Act applies to peace protesters who do no damage to weapons. During the appeal’s oral argument, the prosecutor insisted that the three senior citizens had “interfered with defense.” Circuit Judge Raymond Kethledge asked pointedly, “With a loaf of bread?”
The Court’s written opinion, also by Judge Kethledge, ridiculed the idea of depicting peaceful protesters as saboteurs, saying. “It is not enough for the government to speak in terms of cut fences…” The government must prove that the defendant’s actions were “consciously meant or practically certain to” interfere with “the nation’s capacity to wage war or defend against attack.” Greg, Megan and Michael, the court said, “did nothing of the sort,” thus, “the government did not prove the defendants guilty of sabotage.” The opinion went so far as to say, “No rational jury could find that the defendants had that intent when they cut the fences.” The point is shockingly uncharacteristic in its direct implication of prosecutorial over-reach and manipulation of the jury.
Another reason the Appeals Court vacated the sabotage conviction was that the Supreme Court’s legal definition of “national defense” is unclear and imprecise, “a generic concept of broad connotations…” The Court said it needed “a more concrete” definition because, “vague platitudes about a facility’s ‘crucial role in national defense’ are not enough to convict a defendant of sabotage. And that is all the government offers here.” The definition was so general and vague, the Court said, that it barely applies to the Sabotage Act, since, “It is hard to determine what amounts to ‘interference with’ a ‘generic concept’.”
Re-sentencing May Result in “Time Served” and Release
The Court took the additional and unusual step of voiding the prison sentences for both the sabotage and the damage-to-property convictions, even though the lesser conviction still stands. This was because the harsh prison terms given for property damage were heavily weighted in view of the (ill-gotten) sabotage conviction. The result is that the three radical pacifists will be re-sentenced and may be released. As the Appeals Court said: “It appears that the [sentencing] … for their [damage to property] conviction will be substantially less than their time already served in federal custody.”
If the federal prosecutor does not challenge the reversal of his overzealousness, and another superior court doesn’t reverse the 6th Circuit’s decision, the three could be freed in July or sooner.
The high-profile nature of uranium enrichment at Oak Ridge, and the vulnerability of the site to senior citizens, brought enormous media attention to the case which has been featured in lengthy investigations by the Washington Post, The New Yorker and others. The action, known as “Transformation Now Plowshares,” also helped uncover scandalous misconduct and malfeasance among security contractors at Y-12/Oak Ridge complex.
What remains unscathed is the White House’s plan to spend $1 trillion on new weapons production facilities over the next 30 years — $35 billion a year for 3 decades. The role of the Highly Enriched Uranium Materials Facility in this Bomb production — a clear violation of the Nuclear Non-Proliferation Treaty — was named with blood by the Plowshares action, but H-bomb business marches on. Protesters will converge on the site again Aug. 6.
For more on Y-12 and the weapons build-up, see the Oak Ridge Environmental Peace Alliance, OREPA.org.
John LaForge works for Nukewatch, an environmental justice group in Wisc., and edits its quarterly newsletter.
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TNP attorneys file motion for immediate release
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