McAlester couple files for dismissal of federal charges

·2 min read

Jul. 14—Attorneys claim the federal government no longer has criminal jurisdiction and ask for indictments to be dismissed against a McAlester couple accused of abusing and neglecting a 10-year-old girl in 2020.

Documents show Ashley Schardein, 26, and her husband, Billy Menees, 29, were indicted in federal court on counts of child abuse in Indian country and child neglect in Indian country for the alleged child abuse and torture of a 10-year-old girl in 2020.

The indictment states starting in January 2019 and continuing through May 2020, Schardein and Menees "did willfully and maliciously cause harm and threaten harm, fail to protect from harm, and threaten harm, torture, and injure" the girl.

Attorneys for the couple argue that the federal government no longer has criminal jurisdiction in the case after the U.S. Supreme Court ruling in Oklahoma v. Castro-Huerta.

The ruling states Oklahoma shares concurrent jurisdiction with the federal government and can prosecute criminal offenses by non-Native Americans against Native Americans on reservation lands.

Schardein and Menees were both indicted in federal court due to the victim being a Native American after their state charges were dismissed following the Oklahoma Court or Criminal Appeals' decision to apply the U.S. Supreme Court 2020 ruling in McGirt v. Oklahoma to the Choctaw Nation, meaning the case fell under federal jurisdiction as per the General Crimes Act.

The ruling gave the federal government exclusive prosecutorial power in cases involving Native Americans defendants and victims within tribal lands, such as the Choctaw Nation, prior to SCOTUS' ruling in Oklahoma v. Castro-Huerta that reversed OCCA's decision.

If the federal government does not have a federal statute for the crime, the Assimilative Crimes Act allows federal prosecutors "to borrow state law to fill gaps in the federal criminal law" when prosecuting a person.

Attorneys for the pair argue that since there is no longer a "gap" for the federal government to fill, the use of the ACA is no longer authorized and the indictments should be dismissed, and the state of Oklahoma should retain prosecution.

Federal prosecutors argue that the U.S. Supreme Court's ruling in Oklahoma v. Castro-Huerta reversed OCCA's ruling that the state did not have criminal jurisdiction in matters involving a Native American.

"Simply stated, the Supreme Court found in Castro-Huerta, that the federal government and the state have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian Country," the prosecution argued.

According to court records, this is the third motion to dismiss that has been filed in the case by attorneys for the pair. A judge has ruled against the couple in the two previous motions.

Court records show a ruling on the motion was not filed as of Thursday.

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