Ex-defense lawyer Lynne Stewart’s attempt to win a reduction of her sentence for helping her imprisoned client communicate with his followers in an Egyptian terrorist group was rejected yesterday by a federal appeals court.

The U.S. Court of Appeals for the Second Circuit turned aside Stewart’s claim that she was punished with a 10-year prison term at resentencing in 2010 for making comments outside of court following her initial, lighter sentence in 2006.

She claimed on appeal that Southern District Judge John Koeltl (See Profile), who initially sentenced her to 28 months in prison, violated the First Amendment when he took her comments into consideration at resentencing.

But Judges John Walker (See Profile), Guido Calabresi (See Profile) and Robert Sack (See Profile) said Stewart’s First Amendment rights were not abridged.

“The sentencing judge was determining the characteristics of the defendant, which were legally relevant to a determination of the appropriate sentence to impose on Stewart, through the comments she voluntarily and publicly made,” Judge Sack wrote for the panel in United States v. Stewart, 10-3185.

Stewart, 72, was convicted in 2005 of acting as a conduit between Islamic Group and Sheik Omar Abdel Rahman, who was serving a life sentence for his conviction on seditious conspiracy as part of a broader plot to blow up New York City landmarks.

She violated multiple promises to abide by Special Administrative Measures imposed on Rahman to prevent him from communicating with the outlaw group, including passing a press release to a reporter announcing Rahman’s withdrawal of support for a ceasefire on attacks in Egypt.

After receiving the 28-month sentence on Oct. 16, 2006, Stewart spoke to supporters outside the courthouse in lower Manhattan and was asked if she had any regrets.

“I don’t think anybody would say that going to jail for two years is something you look forward to, but as my clients have said to me ‘I can do that standing on my head,’” she said.

During a Nov. 18, 2009, television interview, Stewart was asked if she would do anything differently. She denied criminal intent but said she thought it was “necessary” to serve her client zealously.

“I would do it again,” she said. “I might handle it a little differently, but I would do it again.”

The comments did not help her on the government’s appeal of her sentence to the Second Circuit, which threw out the sentence and remanded to Koeltl.

The circuit faulted the initial sentence for failing to fully take into account Stewart’s abuse of trust in her role as a lawyer and the perjury she committed on the witness stand at trial. It also questioned whether the application of a sentencing enhancement for committing a crime of terrorism should apply and told the judge to “consider the overall question of whether the sentence is appropriate in view of the magnitude of the offense.”

Lack of Remorse

In resentencing Stewart on the remand, Koeltl said the “standing on my head” comment indicated that Stewart “did indeed view the sentence as a trivial sentence” (NYLJ, July 16, 2010).

Stewart tried to explain away the comment that she would do “it” again, saying the word “it” meant “compassionately represent my client.”

Koeltl, however, said the statement indicated “a lack of remorse for conduct that was both illegal and potentially lethal.”

Given that the Second Circuit had virtually instructed the lower court to consider imposing a longer sentence on remand, Stewart was facing long odds when she returned to the circuit to challenge the 10-year-sentence. Oral arguments were heard on Feb. 29 (NYLJ, March 1).

Yesterday, Sack wrote that Stewart’s appeal this time depended on “cobbling together scraps of First Amendment doctrine and dicta for support.”

“Stewart was not punished for violating a governmental restriction on speech,” Sack said. “The district court did not treat her speech as a violation of any law—it considered the content of that speech to be helpful in enabling the court to craft a sentence ‘sufficient, but not greater than necessary, to comply with the purposes set forth’” elsewhere in the sentencing guidelines, §3553.

Sack said Stewart ineffectually argued that she was prosecuted and punished for her political beliefs.

Koeltl, Sack said, “was properly concerned about whether she considered her previous sentence to be ‘trivial,’ and whether she had remorse for her acts adjudged to be serious crimes, not about any political views of hers that may or may not have played a part in her commission of the crime or her reaction to her conviction and sentence.”

The court also was not persuaded by Stewart’s argument that punishing defendants for their comments outside of court will have a chilling effect on speech.

“There is no authority for the general proposition that underlies Stewart’s arguments: that the government cannot use the contents of voluntary public speech to the speaker’s disadvantage despite the likelihood that someone will subsequently think twice about making a similar public statement,” he said.

Similarly, the court rejected Stewart’s claim she was punished for “ambiguous” statements, which Sack called “a questionable proposition.”

“Were we to read the Constitution to prohibit the consideration of a defendant’s statements solely because they were only arguably unfavorable to the defendant’s position, as Stewart urges, we would take away from the district court the ability fully to assess facts bearing on the defendant’s state of mind in accordance with the requirements of section 3553, which enables the court to impose a sentence fair to both the defendant and society,” he said.

The court then rejected the remainder of Stewart’s arguments on the sentencing enhancements, saying the district court on remand “punctiliously followed our instructions.”

Herald Price Fahringer represented Stewart on the appeal.

“We are terribly disappointed and we are planning to pursue further appellate remedies,” Fahringer said.

Assistant U.S. Attorney Andrew Dember argued for the government.