Appeals Court ruling delays sentencing
Jul. 30—A sentencing hearing for a McAlester couple found guilty of abusing and neglecting a child for more than a year was continued to allow prosecutors time to review an appeals court decision in a similar case.
Ashley Schardein, 28, and her husband, Billy Menees, 31, were each found guilty by a federal jury in February 2023 on counts of child abuse in Indian country and child neglect in Indian country.
The indictment filed against the pair states starting in January 2019 and continuing into 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 child.
According to court documents, the pair is accused of abusing the child by excessively punishing the child with emotional and verbal abuse, physical abuse that including spanking, tying hands and feet for long periods of time, shaving the child's head, not allowing the child to use the restroom, and restricting the child diet to oatmeal, spinach and water.
The couple was scheduled to be sentenced separately last week at the federal courthouse in Oklahoma City.
Federal prosecutors and defense attorneys filed a joint motion to continue the hearings, stating an order and judgement filed by the U.S. Court of Appeals for the Tenth Circuit overturned a similar case.
In United States v. Shell, the Appeals Court overturned a child abuse conviction filed in the Northern District of Oklahoma where the defendant was charged with violating Oklahoma state law.
"Specifically, the court held that 'the assimilation of the assaultive provisions of Oklahoma's child abuse statute via the Assimilative Crimes Act is inappropriate," the Appeals Court stated.
The Assimilative Crimes Act states if the federal government does not have a federal statute for the crime, the Act allows federal prosecutors "to borrow state law to fill gaps in the federal criminal law" when prosecuting a person.
The motion for continuance states the decision in Shell "has the potential to dramatically impact the defendant's case before this court for sentencing."
U.S. District Judge Timothy DeGiusti granted the motion to continue the case and ordered attorneys to file a brief by Aug. 9 addressing what impact "if any" the Appeals Court's order has on the case moving forward.
State prosecutors originally charged the couple in May 2020 with child abuse by torture, kidnapping, conspiracy and several charges of child abuse.
A state judge dismissed the charges against the couple in May 2021 due to their Native American status and the 2020 U.S. Supreme Court ruling in McGirt v. Oklahoma that stripped the state's criminal jurisdiction over Native Americans in what is defined by federal statute as "Indian Country."
The pair was immediately taken into federal custody by federal agents and remain in custody.
The couple remains charged in Pittsburg County District Court for the alleged abuse of a a young child. Schardein is accused of hitting in the back of the head and grabbing the arm of the the child while Menees is charged with "willfully permitting and allowing" the abuse, according to documents.
An affidavit filed in the case stated Menees told investigators the couple kept the child in the room due to her behavioral issues and that he was usually at work during the day while Schardein stayed at home with the children.
Investigators said the child said the head was shaved because of "too many wetting accidents" with Menees claiming he shaved the child's head because he messed up a haircut, the affidavit stated.
Authorities said numerous bruises were also found on the child, who said the bruises came from being whipped with a barn paddle, a belt, and a sock with a bar of soap, the report states.
The documents also state the couple claimed the child was self-harming and claimed they had video.
Investigators reviewed the video and did not see the child attempt self-harm.
Court records show the child testified against the couple along with investigators and medical professionals who examined the child.
The couple unsuccessfully tried three times to have the indictments dismissed against the pair, claiming the federal government no longer had jurisdiction over the matter following the U.S. Supreme Court's ruling in Castro-Huerta v. Oklahoma.
The pair has also claimed the State of Oklahoma's child abuse statute being used by the federal government was unconstitutional.
DeGiusti denied all three motions to dismiss the indictments along with a motion to suppress which claimed a search warrant filed for a cell phone used to obtain evidence against the couple was not written in "good faith."
A motion to have the case moved to Choctaw Nation District Court, where the couple would have faced less prison time, was also denied by DeGiusti.
