A federal appeals court yesterday upheld the conviction of disbarred lawyer Lynne Stewart and instructed a lower court to revoke her bond and direct her to begin serving her time immediately for providing material support to a terrorist conspiracy.
The U.S. Court of Appeals for the Second Circuit, in United States v. Stewart, 06-5015-cr, told Southern District Judge John G. Koeltl to revisit the two years and four month sentence he gave to Ms. Stewart in 2006—a sentence she observed to supporters afterwards she could “do standing on my head.”
The government had asked that Judge Koelthl impose a 30-year sentence on Ms. Stewart, who has been free on a $500,000 personal recognizance bond pending her appeal.
Judges Robert D. Sack and Guido Calabresi were in the majority in holding that Judge Koeltl needed to review the weight he accorded to mitigating factors that led him to give Ms. Stewart a lower sentence. In particular, the court faulted Judge Koeltl for failing to make a finding on whether or not Ms. 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.”
Ms. 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.
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 Second Circuit upheld all three convictions yesterday as well as the 20-month sentence of Mr. Yousry and the 24-year sentence of Mr. Sattar. But it was the sentence of Ms. Stewart that was front and center, with the majority prodding Judge Koeltl to reconsider and Judge Walker finding he should start from scratch.
Yesterday Ms. Stewart responded at a late afternoon press conference in Foley Square.
“I am no criminal,” she said, calling the circuit’s remand order and its instruction to Judge Koeltl that she be directed to surrender immediately “unprecedented.”
Ms. 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, Ms. Stewart’s legal team informed Judge Koeltl she was being treated for breast cancer, one of many factors the judge took into account. Judge Koeltl said at the time that the combination of her age, then 67, and her illness, would make prison “particularly difficult” for her.
Ms. Stewart remained free last night. The timing of her surrender will be decided by Judge 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,” Judge Sack said. Without a finding on perjury, he said, the circuit could not evaluate whether the sentence was “substantively reasonable.”
Judge 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,” Judge Walker said.
Should Judge Koeltl find Ms. Stewart committed perjury, the circuit said he should then resentence 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.
Though the court upheld the sentences of Messrs. Yousry and Sattar, their cases were nonetheless remanded for a determination of whether they should be given different sentences in the event that Judge Koeltl changes Ms. Stewart’s sentence.
Southern District Assistant U.S. Attorney Andrew Dember told Judge Koeltl at sentencing that Ms. Stewart “repeatedly lied to and deceived the government” when she smuggled in messages from Rahman followers, signed affirmations promising to abide by the special administrative measures (SAMs), during several prison visits and then issued statements on behalf of the sheikh withdrawing his support for the ceasefire.
Mr. Dember claimed Ms. Stewart perjured herself when she said on the witness stand she understood there was a “bubble” built into the administrative measures that would allow her, as an attorney, to issue press releases containing statements from the sheikh. He also said Ms. Stewart testified falsely when she claimed to have first learned the name of a Rahman follower and alleged terrorist, Rifa’I Taha Musa, when it was brought up at trial.
Among the evidence seen by the jury was Ms. Stewart and Mr. Yousry caught on tape on May 19 and May 20, 2000 delivering letters to the sheikh, including one containing a message from Taha. During one of those visits, Ms. Stewart spoke gibberish to cover conversations between Mr. Yousry and the sheikh, laughing at one point and saying “I can get an academy award for it.”
Ms. Stewart was represented at trial by Michael Tigar and Jill Shellow-Lavine.
Joshua L. Dratel argued her appeal.
The prosecution was handled by Mr. Dember and assistant U.S. attorneys Christopher Morvillo, Robin Baker and Anthony Barkow, with Mr. Barkow arguing the appeal.
Among other rulings in yesterday’s decision:
• The court affirmed convictions for all three defendants for a conspiracy to defraud the United States by violating the special administrative measures. It rejected Ms. Stewart’s argument she was not bound by the measures because she was a lawyer “and her belated argument collaterally attacking their constitutionality.”
• The court affirmed the convictions of Ms. Stewart and Mr. Yousry for providing and concealing material support to the conspiracy to murder persons in a foreign country in violation of 18 U.S.C. §2339A and 18 U.S.C. §2. It rejected Ms. Stewart’s argument that §2339A was unconstitutionally vague as well as “her claims that her purported attempt to serve as a ‘zealous advocate’ for her client provides her with immunity from the convictions.”
• It affirmed Ms. Stewart’s convictions for making false statements, citing her “repeated and flagrant violation of the SAMs.”
• It dismissed Ms. Stewart’s claim of selective prosecution based on her gender and political beliefs, saying her conduct was “materially different from, and more serious than” that of other lawyers who may have violated the measures imposed on Abdel Rahman, including former U.S. Attorney General Ramsey Clark, who also represented the sheikh at one point.
• It found Judge Koeltl did not err in declining to sever Ms. Stewart’s and Mr. Yousry’s trial from that of Mr. Sattar’s, who joined with Taha in October 2000 to release a religious edict on Abdel Rahman’s behalf “mandating the killing of Israelis everywhere” and the “killing” of “the Jews” wherever they are found. Nor did Judge Koeltl err in admitting into evidence a videotape of Taha, Osama bin Laden and members of Mr. Taha’s group, encouraging violence, a tape the defense decried as wildly prejudicial.
• The Second Circuit also agreed with Judge Koeltl’s treatment of confidential information: his denial of Ms. Stewart’s motion to suppress evidence obtained pursuant to the Foreign Intelligence Surveillance Act, his in camera review of wiretap applications and his rejection of a constitutional challenge to the act.
The opinions were issued almost 22 months following oral argument on Jan. 29, 2008, a delay that was caused, in part, by the changing state of the law on sentencing.
In a footnote, the court said it withheld consideration of the appeal pending the Second Circuit’s en banc decision in United States v. Cavera, 550 F. 3d 180 (2d Cir. 2008), a ringing endorsement of the wide latitude judges now have in sentencing.
But Cavera does not explain all the delay. It is also apparent from the opinions that the judges fought to come to a consensus on the case, but in the end, they could not.
Judge Calabresi issued an 18-page concurrence saying that under U.S. Supreme Court precedent and Cavera, the circuit could find that “some procedural or technical matters” warrant more consideration, but the appellate court could not substitute its judgment for that of the lower court. Judge Calabresi said he joined in the majority “because I understand it to avoid second guessing.”
Judge Sack said the majority, like Judge Koeltl, was “impressed by the factors that figured in Stewart’s modest sentence—particularly her admirable history of providing, at no little cost to herself, proficient legal services in difficult cases to those who could not otherwise afford them,” and like Judge Koeltl, recognized that Ms. Stewart was less culpable than Mr. Sattar.
Still, Judge Sack said, as the circuit tried to “patrol the boundaries of reasonableness,” the sentence was “strikingly low.”
On remand, he said, the question remains “whether, because she was an experienced and dedicated lawyer acting as such when she broke the law in the manner she did, her punishment should have been greater than it was,” Judge Sack said.
It was not such a close question for Judge Walker in his 48-page dissent. Judge Walker said the majority opinion “fails to appreciate the full extent of the district court’s numerous procedural errors.”
Judge Walker faulted, among other things, Judge Koeltl’s finding that the “atypicality” of Ms. Stewart’s “material support” conduct was a ground not to apply a major sentencing enhancement.
Judge Walker said “it trivializes Stewart’s conduct to even suggest that enabling a jailed terrorist leader, with enormous sway over his jihadist followers, to actively conspire with others in a scheme to kidnap and kill innocent people somehow mitigates the gravity of the crime.”
@|Mark Hamblett can be reached at firstname.lastname@example.org.