by Mark Hamblett New York Law Journal June 16, 2010
Prosecutors and defense lawyers have now weighed in on the critical question facing Southern District of New York Judge John J. Koeltl when he resentences Lynne Stewart on July 15: whether the disbarred defense lawyer perjured herself at her 2005 trial for providing material support to a terrorist conspiracy.
Both sides have filed extensive sentencing materials with the judge, whose decision to give Stewart, 70, only 28 months in prison for helping her imprisoned client, Sheik Omar Abdel Rahman, communicate with the outlaw Islamic Group in Egypt, was vacated last year as too light by the 2nd U.S. Circuit Court of Appeals.
Southern District Assistant U.S. Attorneys Andrew S. Dember and Michael D. Maimin, in a 155-page memorandum, say Stewart perjured herself several times, most notably when she said a "bubble" protected her as an attorney when she smuggled out of prison in June 2000 a statement by the sheik withdrawing his support for a cease-fire on violent attacks by Islamic Group.
Read the prosecution's sentencing memorandum.
"The evidence at trial irrefutably proved that Stewart knew that she was committing perjury by offering such testimony," the prosecutors argue in their memo.
They say Stewart's sentence should be increased dramatically both because of her perjury and because of a terrorism enhancement in the federal sentencing guidelines that Koeltl technically applied, but did not enforce. The terrorism enhancement drives the guidelines figure up to the statutory maximum of 30 years in prison.
Defense lawyers Elizabeth M. Fink and Jill R. Shellow counter in their papers by calling Koeltl's initial sentence "reasonable and just."
They argue that Stewart was being truthful when she claimed there was a "bubble" or exception to special administrative prison measures preventing the sheik from getting or sending messages, and that Stewart did not perjure herself when she denied having known, at the time of her offense, the leader of a violent faction within Islamic Group.
Fink and Shellow said Koeltl properly exercised his discretion when he found that, while the terrorism enhancement applied, the 30-year-prison term it triggered was "dramatically unreasonable" and "overstated the seriousness" of her conduct.
"Moreover, this court's determination to grant a variance from the guideline sentence based in part on the unreasonable effect of the terrorism enhancement as applied to Stewart was reasonable and proper, and is an approach that has been approved by other courts," they said.
Stewart's sentence caused turmoil at the circuit, as a two-judge majority of Judges Robert D. Sack and Guido Calabresi held they could not determine whether the sentence was substantively reasonable because Koeltl had declined to make a finding on perjury. The court nonetheless ordered Stewart to begin serving her sentence immediately.
In dissent, Judge John M. Walker was angry at the majority for reversing on a narrow ground a prison term he called "breathtakingly low" considering Stewart's "extraordinarily severe criminal conduct." Walker said it was plain the court should have vacated the sentence as substantively unreasonable.
The panel issued an amended opinion on Dec. 20 with tougher language calling for Koeltl to revisit his treatment of the terrorism enhancement.
But that was not the end of it, as one circuit judge called for a rehearing en banc. The motion lost by a vote of 7-4, but some judges issued opinions that, like Walker, faulted Koeltl for taking into consideration that "no victim was harmed" when Stewart issued the press release.
Judge Jose A. Cabranes issued an opinion accusing the two-judge majority panel of "punting" on the biggest issues in the case.
Stewart was convicted on Feb. 10, 2005, of conspiracy to defraud the United States; conspiracy to provide and conceal the provision of material support to a conspiracy to kill persons in a foreign country; providing and concealing the provision of material support to the conspiracy to kill persons in a foreign country; and making false statements to the U.S. Department of Justice and the Bureau of Prisons.
The "material" she provided came in the form of personnel -- the sheik himself, who was supposed to be walled off from any contact with the Islamic Group through the use of Special Administrative Measures. Stewart and one of her co-defendants, Mohammed Yousry, signed affirmations promising to abide by the restrictions.
Koeltl pronounced sentence in 2006 and Stewart afterwards crowed outside the courthouse that she could do the 28 months "standing" on her "head."
Messrs. Dember and Maimin, in their memo, said Stewart's invocation of a "bubble" in spite of these signed affirmations was exposed during cross-examination as "a fabrication created for trial to attempt to justify her criminal conduct."
They say cross-examination also revealed that Stewart was well aware of violent acts committed by Islamic Group, including the 1997 massacre of 58 tourists and security guards at an archeological site in Luxor, Egypt.
Also undermined during cross examination, they say, was Stewart's claim that she was merely providing the sheik with zealous representation when she smuggled the messages from the prison.
"The evidence at trial established that Stewart intentionally and knowingly assisted in a terrorist murder conspiracy; that she was motivated to do so by her beliefs and ideology; and that her crimes included the defrauding of, and making repeated false statements to, the United States government," they write.
The prosecutors said they were aware there were mitigating factors that might lead Koeltl to impose a sentence of less than 30 years, but they asked for a sentence that "substantially exceeds" the original. They did not specify those factors.
The prosecutors say they will make a more definite recommendation for the term Stewart should receive after they review her papers.
Fink and Shellow argue in their papers that Stewart was not lying about the "bubble" because the government had allowed her and other attorneys for the sheik to "operate in much the same way as Stewart without consequence" for over three years, and the government permitted Stewart to visit her client long after she issued the 2000 news release.
The defense attorneys cited a number of other terrorism cases where defendants have received sentences of between seven and 92 months imprisonment in spite of being eligible for the terrorism enhancement.
"In contrast to Ms. Stewart, many of these defendants expressed a willingness or desire to promote or participate in violence, and many of their crimes involved the negotiation for or provision of weapons," they say.
The attorneys urged Koeltl to stand firm and continue to exercise the broad discretion he has in sentencing.
"This is particularly important in terrorism cases, where in a post- 9/11 context, our sentiments are inflamed," they said. "We are angry, and rightly so, at defendants who are convicted of terrorism related crimes.
"The judges of the Second Circuit are clearly angry," Fink and Shellow write. "Many of them believe that Ms. Stewart deserves a lengthy sentence. But Ms. Stewart's sentence is not before them" and Judge Koeltl is in the "best position" to analyze the case.