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Convictions Upheld in Appeal of Lynne Stewart, Attorney to Blind Sheikh, but Case Remanded for Resentencing

On December 23, 2009, a federal appeals court upheld the convictions of disbarred defense attorney Lynne Stewart and criticized what it called a “strikingly low sentence” for her offenses, which were related to providing material support in a terrorism conspiracy. [See: PLN, Sept. 2005, p.14; Sept. 2002, p.20].

Judges Robert D. Sack and Guido Calabresi of the Second Circuit Court of Appeals questioned the reasonableness of her 28-month sentence, which Stewart had told the Los Angeles Times she could do “standing on her head,” and re-manded the case to the district court for resentencing. The government had sought a sentence of 30 years for Stewart – the statutory maximum.

In particular, the appellate court cited the sentencing judge’s failure to make findings regarding charges of perjury, or to assign proper weight to Stewart’s abuse of trust of her position as an attorney, when considering the appropriateness of her sentence. The ruling threatens to have a significant impact on future right-to-counsel issues.

Stewart, along with co-defendants Mohammed Yousry and Ahmed Abdel Sattar, were convicted in 2005 for providing assistance to her client, Sheikh Omar Ahmed Ali Abdel Rahman, otherwise known as the “Blind Sheikh.” Rahman had himself been convicted in 1995 of a number of terrorism-related crimes, most notably the 1993 bombing of the World Trade Center in New York.

Stewart’s convictions stemmed from her facilitation of communications between the Blind Sheikh and a terrorist or-ganization in Egypt, al-Gama’at, to which he served as a spiritual leader. In November 1997, al-Gama’at massacred over 60 people in Luxor, Egypt and demanded Rahman’s release.

The U.S. Bureau of Prisons had implemented severely restrictive Special Administrative Measures, or SAMs, to pre-vent Rahman from “directing or facilitating yet more violent acts of terrorism from his prison cell,” by prohibiting him from contacting or disseminating information to al-Gama’at. However, Rahman was allowed contact with his legal team with fewer restrictions.
At the heart of much of the case against Stewart was her signing affirmations in which she agreed to abide by the terms of the SAMs, under penalty of perjury, when she had no intention of doing so.

The government argued that Stewart knowingly and repeatedly violated the SAMs. Specifically, Stewart, with the aid of Yousry, who was employed as a translator, helped pass messages back and forth between the Blind Sheikh and mem-bers of al-Gama’at through Sattar, a former paralegal in Rahman’s criminal case who was in contact with the terrorist or-ganization. The messages concerned Rahman withdrawing his support for the group’s cease-fire.

Stewart also gave interviews to the press to communicate Rahman’s statements, in direct violation of the terms of the SAMs. While he was not charged, Ramsey Clark, a former U.S. Attorney General who served as another of Rahman’s defense attorneys, gave a similar media interview.

The thrust of Stewart’s appeal to the Second Circuit concerned her assertion that, as an attorney, she was not bound by the SAMs; that they were in fact unconstitutional; and in any event her defiance of the SAMs was open, not deceitful. She further argued that she was merely attempting to serve as a “zealous advocate” for her client which should have pro-vided her with immunity from prosecution.

The Court of Appeals rejected those claims. The Court declined to consider either the authority of the Attorney Gen-eral to implement the SAMs or the constitutionality of the restrictions that the defendants elected to challenge only after violating them. While it agreed that insofar as her statements to the press were concerned Stewart’s defiance had been open, her facilitation of messages to al-Gama’at was not, as both she and Yousry had gone to great lengths to conceal the purpose and content of those communications.

Further, the appellate court found that without affirming her agreement to abide by the SAMs – conditions Stewart said she never intended to respect – she would not have gained access to Rahman in the first place.

Stewart testified at trial that she had an understanding that there was a “bubble” built into the SAMs whereby attor-neys could issue press releases containing Rahman’s statements. She argued on appeal that she had simply passed along Rahman’s “pure speech,” and did not participate in a terrorism conspiracy as the government alleged.

However, the Second Circuit found that due to the dangerous implications of Rahman’s message, his statements did not amount to “protected speech” under the First Amendment. Additionally, the Court held that her testimony in regard to the “bubble” argument was in fact perjurious, and should be reconsidered as such by the district court.

As for Stewart’s contention that she had acted as a “zealous advocate,” the Court of Appeals observed that even if true, it “gave her no license to violate the law.” Indeed, the Court noted that her “actions tended ultimately and ironically to subvert the same fundamental right of which she took advantage – the constitutional right to counsel – by making it less likely that other incarcerated persons will have the same level of access to counsel that her client was given.”

While the district court held Stewart had “abused her position as a lawyer,” it did not impose an abuse-of-trust en-hancement. The Second Circuit found the sentencing judge had failed to adequately explain what effect her use of her privileged status as an attorney had in terms of her sentence. That, coupled with the lack of findings related to the perjury charges, called into question the substantive reasonableness of the sentence imposed by the district court.

In affirming Stewart’s conviction but remanding for resentencing, the sentences of her co-defendants also were re-manded, though only for consideration in light of any changes in Stewart’s sentence. Sattar, who was charged with the more serious crimes of conspiring and soliciting persons to commit murder, received a sentence of 288 months, while Yousry, who was considered less culpable, was sentenced to 20 months.

In a dissenting opinion, Circuit Judge John M. Walker argued that the Court should have gone further than simply re-manding the case. He wrote that Stewart’s “extraordinarily serious, indeed horrendous, criminal conduct” warranted a sen-tence more in line with Sattar’s than Yousry’s. He said he was “at a loss for any rationale” for what he deemed “a breath-takingly low sentence,” and recommended that it be vacated as substantively unreasonable. See: United States v. Stew-art, 590 F.3d 93 (2d Cir. 2009), cert denied. Stewart awaits resentencing in federal custody as this issue goes to press.

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Related legal case

United States v. Stewart