No Edge in Appeal by Amish Beard-Cutters

     CINCINNATI (CN) — A trio of attorneys arguing against the prison sentences handed down to the Amish beard-cutters failed to impress a Sixth Circuit panel on Wednesday.
     The much-publicized case — heard by the same Sixth Circuit panel that overturned the beard-cutting group’s hate-crime convictions in 2014 — seems set for a quiet conclusion, after the panel of judges raised doubts as to why a second appeal is necessary.
     Attorney Wendi Obermeyer used the bulk of the appellants’ argument time on behalf of Samuel Mullet Sr., the leader of a group of Amish who forcibly cut the beards and hair of other Amish who had been excommunicated.
     Obermeyer criticized the sentencing standard used by the lower court following Mullet’s convictions on conspiracy and kidnapping charges.
     She said the judge’s imposition of a maximum sentence for unlawful restraint was unduly harsh, as it is the same “reserved for criminals convicted of presidential assassinations.”
     Circuit Judge Jeffrey Sutton was skeptical and said, “If unlawful restraint applies here, it applies. What am I missing? [Your argument] seems like a protest of the guidelines.”
     Obermeyer answered, “The sentence was substantively unreasonable. The obstruction guidelines should have been the starting point.”
     Chief Judge Edmund A. Sargus Jr., sitting by designation from District of Southern Ohio, pointed out that many of the sentences handed down were “one quarter of the statutory maximum.”
     Obermeyer stressed that those sentences were erroneously based on the kidnapping sentencing standard, and that “this case is far less violent” than many of those cited by Sargus.
     Attorney Christine Ku, representing the U.S. government, countered Obermeyer’s argument and said, “The district court found that the underlying crimes were serious and that substantial sentences were warranted.”
     She also pointed out that all but one of the defendants has completed his or her prison sentence, and so the arguments are moot.
     Judge Sutton asked Ku if she thought it was “strange to use hate crime [sentencing] structure when a hate crime was not committed? The lack of a retrial seems to reduce the seriousness.”
     Ku answered, “The government didn’t retry the case because of the burden on the victims and witnesses,” who are all Amish and would have to travel to the court by horse and buggy, she said.
     Judge Sargus reiterated Sutton’s point, and expressed concern that “unconvicted conduct is being used to drive the sentencing.”
     Attorney Joseph Morse argued on behalf of Levi Miller, who claimed his sentence was unfairly increased by the hate-crime conviction that was eventually reversed.
     Sutton was hard-pressed to contain his incredulity as Morse began his argument by saying that his client only wanted a “fair and complete trial.”
     He interjected: “Your client wants to be retried for the hate crime? Some people just can’t accept victory. What do you want?”
     Morse responded that he sought clarification as to whether the Sixth Circuit instructed the district court to resentence his client or initiate a new trial, and reiterated that the appeal stems from the notion that his client’s original sentence was based on the hate crime that was eventually “excised from the conviction”.
     Sutton asked, “[Miller] would like to stay in jeopardy and be retried? There is nothing more fair for a criminal defendant than acquittal. You just can’t take yes for an answer.”
     The last of the attorneys to argue before the panel was Mark Butscha Jr., on behalf of Anna Miller.
     Miller sought to overturn her conviction on a conspiracy charge related to the destruction of evidence — specifically a bag of hair that was burned after the attacks.
     Butscha said there is no evidence of Miller’s involvement in the disposal of the hair, adding that even if Miller had been there, the prosecution failed to provide any “evidence of intent” and that “mere presence is not enough to prove conspiracy.”
     Sargus told Butscha that his argument relied on “how much inference” a jury can take from Miller’s presence at the incident.
     During her argument Ku said, “There was significant evidence that Miller participated in the conspiracy,” and that her conviction was based on the fact that she “did not intervene to stop them.”
     Circuit Court Judge Richard Allen Griffin also joined the panel.
     No timetable has been set for the court’s decision.

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