The light prison sentence given to disbarred attorney Lynne Stewart following her conviction for providing material support to a terrorist conspiracy continues to divide the 2nd U.S. Circuit Court of Appeals.
Three different opinions were issued by the circuit Tuesday as judges staked out positions on how the court should review the 28-month sentence Southern District Judge John J. Koeltl ordered Stewart to serve in 2006 for helping imprisoned Sheikh Omar Abdel Rahman communicate with his followers in Islamic Group.
The unmistakable message from at least five of the nine active judges is that Koeltl must impose a significantly tougher penalty on the 70-year-old Stewart when she is re-sentenced on April 22.
The opinions were issued as the circuit announced it was declining to rehear en banc a November ruling by a three-judge circuit panel that was itself sharply divided over the leniency shown Stewart by Koeltl.
On Nov. 17, a majority of Judges Robert Sack and Guido Calabresi faulted Koeltl for failing to make a finding on whether Stewart committed perjury at her trial. In vacating the "strikingly low" sentence, the majority remanded the case and directed Stewart be sent to prison immediately.
Judge John M. Walker Jr. dissented, finding the majority did not go far enough. He said the judges missed the point by finding a narrow ground on which to vacate a "breathtakingly low" sentence.
Koeltl, Walker said, had essentially disregarded a terrorism enhancement in the U.S. Sentencing Guidelines that would have added years to Stewart's prison term.
The panel in November, however, withheld the mandate, indicating that one or more judges opposed to the majority's holding wanted to rehear the case en banc.
In December, the three-judge panel released an amended opinion in which it raised the possibility the lower court erred on the terrorism enhancement. It instructed Koeltl to "take that enhancement into account" and told him to reconsider the fact that no person was actually harmed by the conspiracy .
Tuesday, in dissenting from the decision not to rehear en banc, Judge Jose A. Cabranes said Sack and Calabresi "either ignored or skimmed over at least five sentencing issues of paramount importance."
Cabranes said the "en banc court should have stepped in and stepped up" to decide issues the original panel "effectively" insulated from en banc review by basing much of its remand to Koeltl on the need for "clarification." And he faulted the panel for directing that any appeal from a re-sentencing by Koeltl be heard by the same three judges.
"Punting in a case like this is not 'judicial restraint,'" Cabranes said in an opinion joined by Judge Reena Raggi. "Judicial restraint is the refusal to reach out to decide issues that the case does not present. To refuse to decide issues that are squarely presented is an abdication of judicial responsibility."
Cabranes said Koeltl had made "serious errors," but that the majority did no more than convey "winks and nods" on how to fix the sentence.
And Cabranes took the extra step of filing a chart in an appendix indicating the major issues addressed by the majority, those issues not addressed, and those that were addressed in the amended opinion, if only vaguely.
Circuit case law, he said, shows that the court will reverse a sentence as "substantively unreasonable" if it is an "outlier" involving "actual abuse of a district court's considerable sentencing discretion," one that "shocks the conscience."
"Not surprisingly, we rarely see such cases," Cabranes said. "This, however, is one of them."
TERRORISM ENHANCEMENT
Chief Judge Dennis Jacobs, joined by Judges Richard C. Wesley and Peter W. Hall, concurred in the denial of rehearing en banc, but only because "the panel majority makes no law with which I disagree," it would be "an institutional disservice" to add even more delay to an appeal that was pending for two years, and Koeltl has the chance to re-sentence de novo.
That said, Jacobs said, "The terrorism enhancement is the dominant sentencing consideration in this case. The district court erred in discounting it to zero."
He said, "Any discount based on the fortuitous lack of harm resulting from Stewart's offense is error (whether procedural, substantive, or both.)"
Jacobs agreed with Walker that the majority did not go far enough when it remanded for Koeltl to consider applying a sentence enhancement for Stewart's abuse of her position of trust or her special skills as a lawyer.
Stewart's violation of special administrative measures, or gag orders, imposed on the sheikh to prevent him from sending messages to Islamic Group, "tends to erode judicial confidence that lawyers can be entrusted with national secrets, or (as in this case) with the means to trigger or promote a mass slaughter of innocents," Jacobs said.
He quoted Stewart as saying at a Hofstra University School of Law ethics conference, "I was representing a client, and I would do it again, but I would do it in a way that would better insulate me."
Jacobs said this statement undermines Koeltl's finding that Stewart's conduct was aberrational, adding also that "these comments seek to corrupt the young by enlisting law students in the project of degrading legal practice."
Judge Rosemary Pooler issued a concurring opinion, saying she could not join with Jacobs, whose concurrence, she said, was in essence a dissent because "he mistakenly asks the district court to apply the panel's dissenting opinion, rather than the panel's majority opinion."
Pooler also took issue with the increasing issuance of dissenting opinions from votes denying rehearing en banc, which she called "oddities."
What the dissenters have to say, she said, "has as much force of law as if those views were published in a letter to the editor of their favorite local newspaper."
"By employing the simple tactic of calling for an en banc poll, active judges provide themselves with an opportunity to opine on a case that was never before them," Pooler said. "This amounts to an exercise in free speech rather than an exercise of any judicial function."
Judges Robert Katzmann, Gerard Lynch and Debra Livingston voted on whether to hear the case en banc but did not write. Their votes were not disclosed.
