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2nd Circuit Considers Intent, Knowledge in Lynne Stewart Case
Federal appeals court judges pepper defense with questions; attorney repeatedly cites 'Brandenburg' Supreme Court case
New York Law Journal
January 30, 2008
Disbarred defense attorney Lynne Stewart's knowledge and intent when she passed messages from her imprisoned client to a terrorist group in Egypt was at the heart of intense arguments Tuesday at the 2nd U.S. Circuit Court of Appeals.
Defense attorney Joshua Dratel, trying to win a reversal of Stewart's 2005 conviction for providing material support to a terrorist conspiracy, claimed that Stewart's release of a statement by imprisoned Sheik Omar Abdel Rahman to his followers in the outlaw Islamic Group was protected by the First Amendment.
But Anthony Barkow, an Assistant U.S. Attorney in the Southern District of New York who was part of the government's team during the trial before Judge John Koeltl, told the panel that there was "abundantly overwhelming evidence" that Stewart and interpreter Mohamed Yousry "knew that what they were doing was wrong" when they passed messages between the Islamic Group and the sheik. The sheik was serving a life sentence for seditious conspiracy against the United States and was forbidden from communicating with the outside world from his prison cell.
Judges Guido Calabresi, John M. Walker Jr. and Robert Sack threw one question after another at lawyers for Stewart, Yousry and a third co-defendant, Ahmed Abdel Sattar, who was convicted of engaging in a conspiracy to murder in the Middle East.
Stewart and Yousry were convicted of aiding that conspiracy by providing it with "personnel" in the form of the sheik, whom prosecutors argued was so powerful that his mere words could trigger an abandonment of a cease-fire and a resumption of terror attacks by Islamic Group.
The arguments Tuesday occurred before hundreds of people, many of them supporters of Stewart, who nearly packed the ceremonial courtroom on the ninth floor of the courthouse at 500 Pearl Street.
Dratel, a solo practitioner, aggressively attacked the statute, 18 U.S.C. §2339(a), within the context of the First Amendment. He also said that Koeltl applied the statute in an unconstitutional manner because he "failed to abide by his promise to impose a specific intent requirement" when he charged the jury.
Stewart, who had walked into the courtroom smiling and nodding to supporters, watched from the counsel table as Dratel said the evidence against her amounted to no more than three meetings with her client over a two-year period in the Minnesota prison where he was held. He said she was charged for "isolated and sporadic conduct" in an alleged plot where no "violent acts were planned or occurred."
Walker pressed Dratel to explain Stewart's motive for issuing a May 2000 press release, in which she allegedly said the sheik was withdrawing his support for the cease-fire.
Dratel insisted that the "cease-fire was not abrogated -- it remained in effect." He insisted the sheik's statement said no more than it was time to "re-evaluate" the cease-fire because of the oppression and recalcitrance of the Egyptian government. With no intent to "incite imminent unlawful conduct or violence," he said, the First Amendment protected Stewart's statements.
'CLEAR REPUDIATION'
Not so, Barkow responded.
He argued that Stewart communicated a "clear repudiation of the cease-fire."
When Stewart followed the initial press release by making it clear in a public statement that she was indeed speaking for the sheik, Barkow said the "reaffirmation" was "extremely powerful evidence," that she and Yousry had the requisite state of mind for a conviction under the statute.
During the first two hours of the arguments, Calabresi and Sack returned repeatedly to the issues of knowledge and intent.
Dratel's First Amendment attack on the conviction prompted a hypothetical question from Calabresi. He wanted to know if a journalist secretly visited the sheik and reported a similar message about terminating the cease-fire, could the journalist be charged criminally.
"Yes, your honor," Barkow answered.
"If that raises First Amendment problems I want to know where the line is," Calabresi said. "I want to know whether, if that is indeed a crime, whether we can let a statute of this sort stand under the First Amendment?"
As applied to Stewart, Barkow said later, the statute "requires knowledge or intent and both are tied to the act, which in this case is a conspiracy to kill by making a co-conspirator available" to the terrorists.
Sack tried to pin down Dratel, who repeatedly cited the U.S. Supreme Court case of Brandenburg v. Ohio, 399 U.S. 444 (1969), where the Court found that Ohio's criminal syndicalism law, which barred speech that advocated illegal activities, including violence, violated the petitioner's right to free speech.
"I assume that if your client flew to Egypt and said 'Hey, the cease-fire is off,' you wouldn't be arguing that wasn't a crime?" Sack asked.
"I don't think that meets the Brandenburg" standard, Dratel replied.
"Are you telling me you don't think it would be a crime to leave Minnesota [where Abdel Rahman was imprisoned] and fly there and say 'You are ordered to stop the cease-fire'"? Sack asked again, adding later, "That's not advocacy, is it?"
Dratel insisted that the "material support provided cannot be speech."
'SLAP ON THE WRIST'
With the appeal pending, Stewart, who was disbarred in April 2007, has yet to begin serving a 28-month sentence, which the prosecution believes is far too low for the crime.
Barkow argued that Koeltl abused his discretion in giving Stewart a "slap on the wrist."
Barkow received more than a sympathetic response from Walker, who said Judge Koeltl "didn't sufficiently consider that she abused her position as a lawyer and lied to the government" when Stewart signed attorney affirmations promising to abide by the special administrative measures the Justice Department and the Bureau of Prisons imposed on the sheik to prevent him from communicating with the Islamic Group.
"There's a serious aspect to this case ... that a lawyer is sworn to uphold codes of conduct and ethics and behave in a particular way," Walker said.
He said that Koeltl "in effect" nullified the terrorism enhancement in the sentencing guidelines "because there was no harm."
"Doesn't the judge have to at least account for the guidelines? It seems there was no consideration," he said, adding later, "We don't want total freewheeling judges just to make decisions that they choose."
The Associated Press contributed to this report.
