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2nd Circuit Upholds Disbarred Lawyer's Conviction in Terror Case
New York Law Journal
November 18, 2009
Disbarred lawyer Lynne Stewart had her bail revoked Tuesday as a federal appeals court upheld her conviction and directed a review of the short prison sentence she was given for providing material support to a terror conspiracy.
A divided 2nd U.S. Circuit Court of Appeals in United States v. Stewart, 06-5015-cr, ordered U.S. District Judge John G. Koeltl to take a second look at the sentence of two years and four months he set in 2006, a stretch that Stewart observed to supporters afterwards she could do "standing on my head."
The government had asked for 30 years in prison.
Judges Robert D. Sack and Guido Calabresi were in the majority in holding that Koeltl needed to review the weight he accorded to mitigating factors that led him to give Stewart a lower sentence. In particular, the court faulted Koeltl for failing to make a finding on whether or not Stewart committed perjury at trial.
Judge John M. Walker Jr. dissented on the Stewart sentence, saying the majority did not go far enough and he was "at a loss" for "any rationale that could reasonably justify" a sentence he called "breathtakingly low."
Stewart, 70, was convicted by a jury in 2005 of helping her client, the imprisoned Sheikh Omar Abdel Rahman, communicate with his followers in the outlawed Islamic Group -- a group responsible for the 1997 slaughter of more than 60 tourists, guides and guards at a temple in Luxor, Egypt.
See a timeline of the Stewart case.
She was tried along with interpreter Mohamed Yousry for a plot to pass messages to and from Sheikh Abdel Rahman, who is serving a life sentence for seditious conspiracy in connection with a plot to blow up New York City landmarks.
The passing of messages was in violation of special administrative measures put in place to muzzle the sheikh and prevent him from signaling his followers in Egypt to abandon a ceasefire on terror attacks.
A third defendant, Ahmed Abdel Sattar, was convicted of the more serious crime of conspiracy to kill and kidnap people in another country.
The 2nd Circuit upheld all three convictions Tuesday as well as the 20-month sentence of Yousry and the 24-year sentence of Sattar. But it was the sentence of Stewart that was front and center, with the majority prodding Judge Koeltl to reconsider and Judge Walker finding he should start from scratch.
On Tuesday Stewart responded at a late-afternoon press conference in Manhattan's Foley Square.
"I am no criminal," she said, calling the circuit's remand order and its instruction to Koeltl that she be directed to surrender immediately "unprecedented."
Stewart said her prosecution was "a warning to lawyers to do it the government's way ... I believe I did everything I did as a lawyer and as a lawyer should do, in the best interests of my client."
Before she was sentenced in 2006, Stewart's legal team informed Koeltl she was being treated for breast cancer, one of many factors the judge took into account. Koeltl said at the time that the combination of her age, then 67, and her illness, would make prison "particularly difficult" for her.
Stewart remained free last night. The timing of her surrender will be decided by Koeltl.
WEIGHT OF MITIGATING FACTORS
Judge Sack, who wrote the majority's 125-page opinion, said, "Because the district court declined to find whether Stewart committed perjury at trial, we cannot conclude that the mitigating factors found to support her sentence can reasonably bear the weight assigned to them."
"This is so particularly in light of the seriousness of her criminal conduct, her responsibilities as a member of the bar, and her role as counsel for Abdel Rahman," Sack said. Without a finding on perjury, he said, the circuit could not evaluate whether the sentence was "substantively reasonable."
Walker said he would reverse regardless of the extensive deference now given to judges at sentencing, saying that "Stewart's sentence is so out of line with the extreme seriousness of her criminal conduct" that it was "not only procedurally unreasonable, but also substantively unreasonable and an abuse of discretion."
"For two years, defendant Lynne Stewart, through artifice and deception, and despite sworn commitments to the contrary made to the government, carried out a criminal plan to transmit instructions from her imprisoned client, a terrorist leader, to his jihadist followers in the Middle East, including, ominously, his withdrawal of support for a fragile cease-fire in Egypt, an action that effectively sanctioned renewed terrorist attacks and indiscriminate loss of human life," Walker said.
Should Koeltl find Stewart committed perjury, the circuit said he should then re-sentence her, and it provided some pointed guidance.
"The district court should also consider whether Stewart's conduct as a lawyer triggers the special-skill/abuse of trust enhancement under the Guidelines, see U.S.S.G. §3B1.3, and reconsider the extent to which Stewart's status as a lawyer reflects the appropriate sentence," he said.
