Government responds to Y-12 protesters’ appeal; argues that sabotage convictions were justified


Assistant U.S. Attorneys Melissa Kirby, left, and Jeff Theodore, who prosecuted the Y-12 break-in case, leave the Federal Courthouse on May 8, 2013, after a jury found three Plowshares protesters — Michael Walli, Sister Megan Rice, and Greg Boertje-Obed — guilty on all charges. (KNS photo/Saul Young)

On Wednesday evening, the federal government responded to the appeal seeking to overturn the conviction of three Y-12 protesters on sabotage charges. The response was filed in the U.S. Sixth Circuit Court of Appeals by Assistant U.S. Attorney Jeff Theodore, who led the prosecution of the case in U.S. District Court in Knoxville and argued in his response to appeal that the Y-12 intruders did try to injure or interfere with the nation’s defense and that their convictions were justified.

In their motion filed with the federal appeals court in early August, attorneys for the Plowshares protesters — Michael Walli, Sister Megan Rice and Greg Boertje-Obed — said it was only through “distorted and unmoored interpretation of the Sabotage Act” that the government was able to obtain convictions on the most serious felony charge related to the July 28, 2012 intrusion at Y-12.

Theodore refuted that statement and others in a point-by-point, 53-page response to the appeal.

“Viewing the evidence in the light most favorable to the government, the evidence was sufficient for a rational trier of fact to find that the defendants intended to injure, interfere with, or obstruct the national defense,” Theodore said in the response summary.

“The evidence at trial clearly established that Defendants wanted nuclear disarmament generally and wanted Y-12’s operations to cease; they sought to advance that objective by breaking into and damaging property at Y-12, a nuclear weapons production facility that is a unique and critical part of the United States’ national defense,” he wrote. “The jury could reasonably infer that Defendants knew and intended that their actions would disrupt operations at Y-12 in some way, whether by delaying construction of the UPF, by diverting resources for security and repairing damage, or by drawing publicity to the intrusion.

“A rational juror could further find that, because of Y-12’s critical and unique role in producing and maintaining nuclear weapons for the national defense, the Defendants’ intent to disrupt operations at Y-12 also constituted an intent to injure, interfere with, or obstruct the national defense.”

Attorneys for the defendants also argue in their appeal that U.S. attorneys in the case were guilty of prosecutorial misconduct, in part for making reference to the events of 9/11 in closing arguments.

Theodore said prosecution paralleled the jury instructions for the sabotage charge in the case, and he also said the 9/11 reference was appropriate.

“The prosecutor’s isolated reference, during closing argument, to enhanced security after 9/11 was an appropriate analogy to show that even illegal actions can result in positive change. Given the context of the entire trial, that comment was neither improper nor flagrant, nor could it have misled the jury,” he wrote.

He also said the complaint regarding the courtroom use of prior convictions of Walli and Boertje-Obed was OK, given the context, and that the court did not “abuse its discretion” in allowing that.

“The court gave a limiting instruction to the jury and directed the United States not to introduce the nature of the prior conviction. Defendant Boertje-Obed stated that those measures adequately resolved his concern about the admissibility of his prior conviction, so he has arguably waived his current challenge to it,” the government’s response states. “Defendant Walli has plainly waived this issue because he preemptively introduced his conviction during his direct testimony.”

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About Frank Munger

Senior Writer Frank Munger covers the Dept. of Energy's Oak Ridge facilities and many related topics — nuclear weapons, nuclear waste and other things nuclear, environmental cleanup and science of all sorts. Atomic City Underground is, first and foremost, a news blog, but there's room for analysis, opinion and random thoughts that have no place else to go.