UNITED STATES of America, Appellee-Cross-Appellant, v. Lynne STEWART, Mohammed Yousry, Ahmed Abdel Sattar, Defendants-Appellants-Cross-Appellees.
Docket Nos. 06-5015-cr (L), 06-5031-cr (con), 06-5093-cr (con), 06-5131-cr (con), 06-5135-cr (con), 06-5143-cr (con)
United States Court of Appeals, Second Circuit
Nov. 17, 2009
As Amended: Dec. 23, 2009
590 F.3d 93
CONCLUSION
For the foregoing reasons, the May 6, 2009 Order of the District Court is AFFIRMED insofar as the District Court vacated the attachment of EFTs of which TOM was the originator or beneficiary. The cause is REMANDED to the District Court with instructions to enter an order to show cause why it should not dismiss the complaint for lack of personal jurisdiction.
Appellant‘s request for oral argument is denied. We vacate our June 18, 2009 order staying the order of the District Court. Each party shall bear its own costs.
Joshua L. Dratel (Meredith S. Heller, Erik B. Levin, David B. Rankin, of counsel), Law Offices of Joshua L. Dratel, P.C., New York, NY, for Defendant-Appellant-Cross-Appellee Lynne Stewart.
Robert A. Soloway (David Stern, David A. Ruhnke, of counsel) Rothman Schneider Soloway & Stern, LLP, New York, NY, and Ruhnke & Barrett, Montclair, NJ, for Defendant-Appellant-Cross-Appellee Mohammed Yousry.
Barry M. Fallick (Jillian S. Harrington, Kenneth A. Paul, of counsel) Rochman Platzer Fallick Sternheim Luca & Pearl, LLP, New York, NY, for Defendant-Appellant-Cross-Appellee Ahmed Abdel Sattar.
Anthony S. Barkow, Assistant United States Attorney (Michael J. Garcia, United States Attorney for the Southern District of New York, Andrew S. Dember, Michael D. Maimin, Diane Gujarati, Katherine Polk Failla, Celeste L. Koeleveld, Assistant United States Attorneys, of counsel), New York, NY, for Appellee-Cross-Appellant.
Before: WALKER, CALABRESI, and SACK, Circuit Judges.
Judge CALABRESI concurs, and also files a separate concurring opinion. Judge WALKER concurs in part and dissents in part in a separate opinion.
SACK, Circuit Judge:
Defendants Lynne Stewart, Mohammed Yousry, and Ahmed Abdel Sattar appeal from judgments of conviction of the United States District Court for the Southern District of New York (John G. Koeltl, Judge) for various crimes arising from their contacts with and behavior relating to government restrictions on communications and other contacts with Sheikh Omar Ahmad Ali Abdel Rahman. Rahman is serving a life sentence in a maximum security prison for terrorism-related crimes of seditious conspiracy, solicitation of murder, solicitation of an attack on American military installations, conspiracy to murder, and a conspiracy to bomb. He is subject to “Special Administrative Measures” (“SAMs“) restricting his ability to communicate with persons outside of the prison in which he is incarcerated so as to prevent him from continuing to lead terrorist organizations and their members. The government cross-appeals from the defendants’ sentences.
We would be remiss if we did not, at the outset, commend the district court for its thoroughness, thoughtfulness, and effectiveness in the conduct of these unusually lengthy, difficult, and sensitive proceedings. Much of what follows simply reports what it did and tracks what it said.
We affirm the judgments of conviction. We also affirm the sentences of Yousry and Sattar. We remand the case, however, with respect to the sentence of Stewart, and also with respect to the sentences of Yousry and Sattar in light of the resentencing of Stewart.
In particular, we affirm the judgments as to each defendant‘s conviction of con
We affirm as to Sattar‘s conviction of conspiring to murder persons in a foreign country in violation of
We affirm as to Stewart‘s and Yousry‘s convictions of providing and concealing material support to the conspiracy to murder persons in a foreign country in violation of
Finally, we affirm Stewart‘s convictions for knowingly and willfully making false statements in violation of
We reject the remaining challenges to the convictions. We affirm the district court‘s rejection of Sattar‘s vindictive prosecution claim because there is insufficient evidence to support a finding that the government‘s pre-trial decision to add new charges against Sattar amounted to an effort to punish him for exercising his constitutional rights. And, because Stewart‘s conduct was materially different from, and more serious than, the conduct of other lawyers representing Abdel Rahman who may also have violated the SAMs, we affirm the district court‘s rejection of Stewart‘s claim that she was selectively prosecuted on account of her gender or political beliefs. We also conclude that the district court did not abuse its discretion in declining to sever the trial of Stewart and Yousry from that of Sattar in light of the general preference for joint trials, the specific charges at issue here, and the district court‘s curative instructions. Nor did the district court abuse its discretion by empaneling an anonymous jury in light of the particular allegations of criminal wrongdoing at issue, involving the corruption of the judicial process, and the widespread publicity about the case. We find no fault with the district court‘s resolution of allegations of juror impropriety. We also agree with the district court‘s treatment of confidential information, including its denial of Stewart‘s motion to suppress evidence obtained pursuant to the Foreign Intelligence Surveillance Act (“FISA“), its ex parte, in camera examination of FISA wiretap applications, and its rejection of Stewart‘s more general challenges to the constitutionality of FISA. Finally, we find no fault with the district court‘s treatment,
We therefore affirm the convictions in their entirety.
We also affirm the sentences of Sattar and Yousry. We conclude that the district court committed neither procedural error in calculating the applicable Guidelines ranges, nor substantive error in varying from those ranges pursuant to its consideration of the factors set forth in
We cannot affirm Stewart‘s sentence on the basis of the record before us. 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. We therefore remand the cause to the district court for further consideration of her sentence, in light of, among other things, the charges of perjury against her and of any other matter it deems necessary or advisable, and direct the court to revoke Stewart‘s and Yousry‘s bail pending appeal and to order them to surrender to the United States Marshal to begin serving their sentences forthwith.
BACKGROUND
The transcript of the trials in the cases on appeal runs in excess of thirteen thousand pages. The district court issued nine opinions and a wide variety of orders addressing issues presented during the course of the proceedings. See principally, United States v. Sattar, 272 F.Supp.2d 348 (S.D.N.Y.2003) (”Sattar I“); United States v. Sattar, No. 02 Cr. 395(JGK), 2003 WL 22137012, 2003 U.S. Dist. LEXIS 16164 (S.D.N.Y. Sept. 15, 2003) (”Sattar II“); United States v. Sattar, 314 F.Supp.2d 279 (S.D.N.Y.2004) (”Sattar III“); United States v. Sattar, 395 F.Supp.2d 66 (S.D.N.Y.2005) (”Sattar IV“); United States v. Sattar, 395 F.Supp.2d 79 (S.D.N.Y.2005) (”Sattar V“).1 The filings in this Court reflect the massiveness of the record.2 We therefore describe the proceedings in the district court and the relevant facts only in the detail we think necessary to explain our decision. In reviewing the conviction, we set forth the facts, as we must, in the light most favorable to the government. See United States v. Aleskerova, 300 F.3d 286, 292 (2d Cir. 2002).
In October 1995, Sheikh Omar Ahmad Ali Abdel Rahman was convicted of a variety of terrorism-related crimes in the United States District Court for the Southern District of New York. According to the government‘s evidence at his trial,
Abdel Rahman, a blind Islamic scholar and cleric, was the leader of [a] seditious conspiracy, the purpose of which was “jihad,” in the sense of a struggle against the enemies of Islam. Indicative of this purpose, in a speech to his followers Abdel Rahman instructed that they were to “do jihad with the sword, with the cannon, with the grenades, with the missile ... against God‘s enemies.” Abdel Rahman‘s role in the conspiracy was generally limited to overall supervision and direction of the membership, as he made efforts to remain a level above the details of individual operations. However, as a cleric and the group‘s leader, Abdel Rahman was entitled to dispense fatwas, religious opinions on the holiness of an act, to members of the group sanctioning proposed courses of conduct and advising them whether the acts would be in furtherance of jihad.3
United States v. Rahman, 189 F.3d 88, 104 (2d Cir.1999) (per curiam), cert. denied, 528 U.S. 1094 (2000) (citations omitted). The crimes of conviction included soliciting the murder of Egyptian President Hosni Mubarak while he was visiting New York City; attacking American military installations; conspiring to murder President Mubarak; conspiring to bomb the World Trade Center in 1993, which succeeded; conspiring subsequently to bomb various structures in New York City, including bridges, tunnels, and the federal building containing the New York office of the Federal Bureau of Investigation (“FBI“), which did not succeed; and conspiring to commit crimes of sedition. Id. at 103-04, 107-11. For these crimes, Abdel Rahman was sentenced to be incarcerated for the remainder of his life. Id. at 148. Following his conviction and appeal therefrom, Abdel Rahman‘s legal team focused on two goals: improving his conditions of confinement, and obtaining his transfer from prison in the United States to Egypt.
The government asserts that Abdel Rahman was linked to various other acts of violence: He is said to be, or to have been, a spiritual leader of what the indictment in the instant prosecution refers to as “‘al-Gama‘a al-Islamiyya,’ a/k/a ‘al-Gama‘at,’ a/k/a ‘Islamic Gama‘at,’ a/k/a ‘Egyptian al-Gama‘at al-Islamiyya‘” (hereinafter, “al-Gama‘a“), also referred to by the district court and the parties in English as the “Islamic Group” or “IG.” See Superseding Indictment ¶ 8. Al-Gama‘a was designated a foreign terrorist organization (“FTO“) by the United States Secretary of State in 1997 pursuant to
“Federal regulations provide that the Bureau of Prisons may implement SAMs, ‘[u]pon direction of the Attorney General,’ when ‘reasonably necessary to protect persons against the risk of death or serious bodily injury.’
The May 11, 1998, SAMs applicable to Abdel Rahman “prohibited [him] from having contact with ... others (except as noted in this document) that could foreseeably result in [his] communicating information (sending or receiving) that could circumvent the SAM intent of significantly limiting [his] ability to communicate (send or receive) terrorist information.” SAMs of May 11, 1998, ¶ 3. To enforce this general prohibition, the measures regulated Abdel Rahman‘s telephone contacts, id. ¶ 4, his mail, id. ¶ 5, and his visitors’ visits, id. ¶ 6. The measures limited his telephone contacts solely to his attorneys of record and his wife, id. ¶ 4(a), and prevented matters discussed in those calls from being “divulged in any manner to any third party,” id. ¶ 4(c)(i). The measures required the screening of all his outgoing and incoming non-legal mail, id. ¶ 5, and prohibited him from “talk[ing] with, or otherwise communicat[ing] with, any representative of the news media,” including “through [his] attorney(s)/staff, or otherwise,” id. ¶ 8. The measures also provided for the monitoring of all non-legal visits. Id. ¶ 6. On the condition that his attorneys would not divulge any information to third parties, Abdel Rahman was permitted to communicate with his legal team by telephone, id. ¶¶ 4(a) & 4(d), mail, id. ¶ 5(a), and in person, id. ¶ 6, with fewer restrictions than with other persons. Members of this legal team included lawyers Ramsey Clark, Abdeen Jabara, Lawrence Schilling, and defendant Lynne Stewart.
Subsequent versions of the SAMs retained similar prohibitions and screening mechanisms including the prohibition against communications with the news media. See, e.g., SAMs of Apr. 7, 1999, ¶ 9; SAMs of Dec. 10, 1999, ¶ 9. They retained similar provisions regarding legal communications, and incorporated provisions requiring Abdel Rahman‘s attorneys to sign affirmations acknowledging their receipt of the version of the SAMs in effect. See, e.g., SAMs of Apr. 7, 1999, ¶ 14; SAMs of Dec. 10, 1999, ¶ 14. By virtue of those affirmations, counsel agreed to abide by the terms of SAMs then in effect. See, e.g., Unsigned Affirmation of Abdeen Jabara, Apr. 2000; Unsigned Affirmation of Ramsey Clark, Apr. 2000; Affirmation of Ramsey Clark, Jan. 10, 2001; Affirmation of Abdeen Jabara, Jan. 10, 2001; Affirmation of Ramsey Clark, Apr. 24, 1997.
Stewart repeatedly executed such statements. On May 1, 1998, she signed a document entitled “Attorney Affirmation,” in which she affirmed, under penalty of perjury, the truth of specified statements regarding the then-applicable SAMs: that she had read the May 11, 1998, version of the SAMs; that she “underst[ood] the restrictions contained in that document and agree[d] to abide by its terms“; that during her visits to Abdel Rahman she would “employ only cleared translators/interpret-
Defendant Mohammed Yousry, a middle-aged New York University graduate student who served as one of the legal team‘s translators had also been, in that capacity, a member of Abdel Rahman‘s trial team. As a translator, Yousry was permitted to read to Abdel Rahman, who is blind, and to take dictation from him.
Various members of the team, including Stewart and Yousry, also maintained contact with defendant Ahmed Abdel Sattar, who had served as a paralegal during Abdel Rahman‘s trial. The evidence established that Sattar was in continual contact with various members of al-Gama‘a abroad. See, e.g., Transcript of Conversation between Ahmed Abdel Sattar and Rifa‘i Ahmad Taha Musa, May 9, 2000.
The Visits to Abdel Rahman
Sometime in 1997, more than three years after Abdel Rahman was taken into federal custody, a faction of al-Gama‘a declared a unilateral “cease-fire,” i.e., a halting of violent operations, in Egypt. When the cease-fire was first announced, Abdel Rahman was understood to support it.
In November 1997, despite the cease-fire, a group associated with al-Gama‘a attacked, killed, and mutilated the bodies of more than sixty tourists, guides, and guards at the Hatshepsut Temple in Luxor, Egypt. Rifa‘i Ahmad Taha Musa (“Taha“)—a military leader of al-Gama‘a, a follower of Abdel Rahman, and an unindicted co-conspirator herein—was involved in the incident.4 Alaa Abdul Raziq Atia (“Atia“), later a leader of al-Gama‘a‘s military wing in Egypt, was also involved in the killings. Al-Gama‘a later claimed responsibility for the attack and demanded Abdel Rahman‘s release from prison in the United States.
In January 1998, Abdel Rahman was assigned by the Bureau of Prisons to the Federal Medical Center in Rochester, Minnesota (“FMC Rochester“). In March 1999, Stewart and Yousry visited him there. Prior to the visit, Stewart signed and delivered to the United States Attorney‘s Office for the Southern District of New York a document in which she affirmed, under penalty of perjury, that she would abide by the SAMs imposed by the Bureau of Prisons on Abdel Rahman.
At about this time, defendant Sattar was in contact with members of al-Gama‘a, who were divided over their support for what remained of the cease-fire. Pro-cease-fire and anti-cease-fire factions developed, and members of the organization wanted Abdel Rahman to take a position on the matter.
Yousry read the messages to Abdel Rahman during the visit, and Abdel Rahman dictated to Yousry responses to some of them. Yousry and Stewart then smuggled the responses out of FMC Rochester among their legal papers, and sent them to Sattar. As directed by Abdel Rahman, Sattar informed various members of al-Gama‘a that Abdel Rahman was willing to reconsider the effectiveness of the cease-fire and had rejected the associated idea that al-Gama‘a should form a political party in Egypt.
News of Abdel Rahman‘s purported position spread. But some members of the media in the Middle East expressed skepticism about the veracity of Sattar‘s representations, questioning whether they in fact came from Abdel Rahman or whether Sattar had fabricated them himself. To refute those reports, Sattar and Yousry asked one of Abdel Rahman‘s lawyers, former United States Attorney General Ramsey Clark, to tell a reporter for an Arabic-language newspaper that Abdel Rahman opposed al-Gama‘a‘s formation of a political party. Clark, they thought, would be perceived as more authoritative than Sattar. Clark eventually agreed to talk to the reporter. He told the reporter that “[t]he Sheikh has said he believes that the formation of a new political party to engage in politics in Egypt at this time is ... not correct and should not be done.” Transcript of Conversation between Ahmed Abdel Sattar, Mohammed Yousry, Ramsey Clark, and Muhammad Al-Shafi‘i, Nov. 5, 1999, at 15.
In September 1999, Farid Kidwani, the then-leader of al-Gama‘a‘s military wing, was killed along with three other members of the group in a shootout with Egyptian police. Kidwani‘s death precipitated further tension and debate within al-Gama‘a regarding the advisability and efficacy of the cease-fire.
Taha sent another message to Sattar to be relayed to Abdel Rahman urging Abdel Rahman to support the termination of the cease-fire and noting that Taha and his associates needed a “powerful word” from Abdel Rahman to achieve this goal. Taha told Sattar that such support from Abdel Rahman would “strengthen me among the brothers.” Sattar agreed to send the message to Abdel Rahman and prepared a letter to Abdel Rahman for that purpose. In mid-September 1999, Clark and Yousry surreptitiously took the letter, along with newspaper articles relating to the killing of Kidwani in Egypt, with them during a visit to Abdel Rahman in FMC Rochester. Yousry read the letter and newspaper clippings aloud to Abdel Rahman. From these documents, Abdel Rahman first learned of Kidwani‘s death.
Abdel Rahman dictated a letter to Yousry in response.
To those against whom war is made, permission is given to fight, because they are wronged (oppressed)—and verily God is most powerful for their aid.... The latest thing published in the newspapers was about the Egyptian regime‘s killing of four members of the Group. This is ... enough proof that the Egyptian regime does not have the intention to interact with this peaceful Initiative [i.e., the cease-fire] which aims at unification. I therefore demand that my brothers, the sons of [al-Gama‘a] do a comprehensive review of the Initiative and its results. I also demand that they consider themselves absolved from it.
On February 18 and 19, 2000, Yousry and Abdeen Jabara, an Arabic-speaking lawyer and member of Abdel Rahman‘s legal team, visited Abdel Rahman at FMC Rochester. They brought with them another letter which included another message from Taha, again asking for Abdel Rahman‘s support for ending the ceasefire. But Jabara would not permit Abdel Rahman to dictate a letter to Yousry in response. And, notwithstanding pressure from Sattar and Taha, Jabara, like Clark before him, refused to issue any public statement regarding Abdel Rahman‘s position on the matter.
On May 16, 2000, defendant Stewart signed another affirmation that she and her staff would abide by the SAMs. She did not submit that affirmation to the United States Attorney‘s Office until May 26.
On May 18, 2000, Stewart met with Sattar, who gave her more letters for Abdel Rahman, including another message from Taha yet again seeking Abdel Rahman‘s approval of an end to the cease-fire. Taha asked Abdel Rahman to take a “more forceful position” regarding the end of the cease-fire and to “dictate some points we can announce in a press conference with Lynne.” Transcript of Second Audiovisual Recording involving Omar Abdel Rahman, Mohammed Yousry, Lynne Stewart, and others, May 19, 2000, (“Video Tr. May 19, 2000, Tape 2“),5 at 36.
On May 19 and 20, 2000, Stewart and Yousry visited Abdel Rahman, taking Sattar‘s most recent letters with them, including the letter containing the message from Taha. Unbeknownst to them, the government, pursuant to a warrant, videotaped the meetings. Yousry told Abdel Rahman that Abu Sayyaf—an Islamic terrorist group in the Philippines—had taken hostages to be used in bargaining for the release of Abdel Rahman and others. When Yousry explained to Stewart that he was “telling the Sheikh about the Abu Sayyaf group in the Philippines” and how “they took hostages,” Stewart replied, “Good for them.” Transcript of First Audiovisual Recording involving Omar Abdel Rahman, Mohammed Yousry, and Lynne Stewart, May 19, 2000, at 27.
From the beginning of the visit, Stewart was aware of the prison guards’ presence. For example, she asked Yousry, “Do they usually sit like this and watch us?” Id. at 10. And during this meeting, Stewart and Yousry took overt steps to ensure that the nature of their communication with Abdel Rahman would be concealed from the prison guards. As she suggested to Yousry, they “should give them [i.e., the guards] something to watch.” Id. at 11. When the guards were standing close to the window of the conference room in which Abdel Rahman, Stewart, and Yousry, were meeting Yousry told Stewart to “look at me and talk a little bit because they are watching us closely.” Id. at 51. While Yousry read the message to Abdel Rahman, Stewart uttered a meaningless series of phrases to Yousry so that it would appear to an observer as though she was taking part in a three-way conversation: “I am talking to you about ... him going to have a, uh,
Stewart continued to talk while Yousry read aloud Taha‘s statement in Sattar‘s letter. Yousry explained to Abdel Rahman that “Lynne just says anything, [laughing] (UI) Sir.” Id. at 52 (bracketed material in original). Stewart remarked, “I can get an academy award for it.” Id.
Stewart and Yousry then had this exchange:
YOUSRY: ... Lynne, I think you should talk to him because they are looking at me.
STEWART: (UI) there (UI), they, uh, (UI)... [she taps Yousry‘s pad with her pen]7 uhm, if he finds out what this is, then we‘re ... [Laughs.]
YOUSRY: [Laughs] In trouble.
STEWART: [Laughing] Yeah, that‘s right.
Video Tr. May 19, 2000, Tape 2, at 29 (brackets in original).
Stewart and Yousry also took evasive action when a guard appeared to take interest in their conversation. At one point, while Yousry was conversing with Abdel Rahman, Stewart touched Yousry‘s hand and said “Why don‘t you stop there and we‘ll talk a minute urn, the, uh.... Ahmed‘s youngest son needs glasses, did you know that?” Id. at 30. Yousry then explained to Abdel Rahman, “Lynne says, stop a little because they are by the glass.” Id. Not long afterwards, Stewart tapped with the pen on the paper in front of Yousry and told him to “continue reading this ‘cause this is setting up the organizational system around his conditions.” Id. Yousry continued reading. Stewart then made a series of statements unrelated to the substance of the conversation between Yousry and Abdel Rahman. Yousry kept Abdel Rahman informed of what Yousry and Stewart were doing, noting that “Lynne continues to eh, she‘s watching them, she‘s watching them,” to which Abdel Rahman replied, “[v]ery good, very good.” Id. at 33. After Yousry finished reading Taha‘s message to Abdel Rahman, he returned it to a notebook that he had brought with him and with which he left.
On the second day of the same visit, Abdel Rahman dictated to Yousry, among other things, a letter to an al-Gama‘a lawyer who favored the cease-fire, asking him to allow others in al-Gama‘a to criticize it, and another to Taha asking him to “escalate the language” of criticism of the cease-fire. Video Tr. May 20, 2000, Tape 2, at 32.
Meanwhile, Stewart and Yousry continued to engage in what Stewart later called “[c]overing noises,” Video Tr. July 13, 2001, Tape 2, at 12, and other tactics designed to obscure the nature of what they were doing. After one such incident, Yousry explained to Abdel Rahman, “[S]he just has to say that in order to break the ... The people are looking.” Video Tr. May 20, 2000, Tape 1, at 14. Stewart told Yousry, “I am making allowances for them looking in at us and seeing me never speaking and writing away here while you talk Arabic.” Id. at 17. She then directed
At the end of the visit, Stewart and Yousry took the Yousry-transcribed responses from Abdel Rahman with them from the prison, and later gave them to Sattar. Sattar then passed them along to Taha and another member of al-Gama‘a. Sattar also spoke to various members of al-Gama‘a, informing them that Abdel Rahman would have “no objection” to a return to violence. Transcript of Audio Recording of Ahmed Abdel Sattar, Rifa‘i Ahmad Taha Musa, and Salah Hashim, May 29, 2000, at 3.
At about this time, Sattar told members of al-Gama‘a that Stewart would be making a public statement about Abdel Rahman‘s views on the cease-fire. Sattar and Stewart first discussed what Stewart would say to the press. Then, on June 13, 2000, Sattar and Stewart spoke to Esmat Salaheddin, a Reuters reporter based in Cairo. Stewart told Salaheddin that Abdel Rahman “is withdrawing his support for the ceasefire that currently exists.” Trial Transcript (“Trial Tr.“) at 5574, 5617, testimony of Salaheddin. She explained that Abdel Rahman had made the statement from prison two weeks before.
The next day, other Middle Eastern press outlets carried the news that Abdel Rahman had withdrawn his support for the cease-fire. Many noted that for the cease-fire to hold, Abdel Rahman‘s support was essential.
On June 20, 2000, Stewart participated in a telephone conference with Abdel Rahman. She then sent another statement on Abdel Rahman‘s behalf via facsimile to Salaheddin, the Reuters reporter in Cairo. The telecopy said, “Everything said in the previous statements is correct” and quoted Abdel Rahman as saying, “I do withdraw my support to the [cease-fire] initiative.” Statement for Release, Abdel Rahman, June 20, 2000. Following Stewart‘s statements on Abdel Rahman‘s behalf, several members of al-Gama‘a began preparations to engage anew in acts of violence.
On October 4, 2000, Sattar and Taha completed a fatwa on Abdel Rahman‘s behalf, imitating his style, “mandating the killing of the Israelis everywhere” and “the killing [of] the Jews wherever they are (UI) and wherever they are found.” Transcript of Audio Recording of Ahmed Abdel Sattar and Yassir Al-Sirri Oct. 4, 2000, (“Audio Tr. Oct. 4“) at 13-16.8 Sat-
On July 13 and 14, 2001, Stewart again paid a visit to Abdel Rahman at FMC Rochester, having signed a revised affirmation agreeing to abide by the SAMs and having sent the affirmation by facsimile to the United States Attorney‘s Office for the Southern District of New York on May 7, 2001. Stewart again, with Yousry‘s assistance and contrary to provisions of the SAMs, surreptitiously brought messages to and from Abdel Rahman.
Procedural History
On April 8, 2002, the defendants were indicted in connection with these and related acts; a superseding indictment was filed on November 19, 2003. On February 10, 2005, a jury found the defendants guilty on all counts in the superseding indictment. Specifically, all three defendants were convicted of conspiring to defraud the United States in violation of
On October 16, 2006, following the denial of the defendants’ motions for a judgment of acquittal and other relief, the district court sentenced the defendants. See Sentencing Transcript of Oct. 16, 2006 (“Sent‘g Tr.“). Sattar was sentenced to a 288-month term of incarceration to be followed by a five-year term of supervised release and a $300 special assessment; Stewart was sentenced to a 28-month term of incarceration to be followed by a two-year term of supervised release and a $500 special assessment; and Yousry was sentenced to a 20-month term of incarceration to be followed by a two-year term of supervised release and a $300 special assessment. Sattar is currently serving his sentence; Stewart and Yousry are free on bail pending appeal.9
All three defendants appeal, challenging the validity of their convictions on a variety of grounds. The government challenges the reasonableness of the sentences on cross-appeal.
Your Brother, Omar Abdel Rahman ... [i]n the USA‘s prisons, and a scholar of the Azhar.
Audio Tr. Oct. 4 at 13, 15-17.
I. Standard of Review
We review de novo the district court‘s legal conclusions, including those interpreting and determining the constitutionality of a statute. United States v. Awadallah, 349 F.3d 42, 51 (2d Cir.2003), cert. denied, 543 U.S. 1056 (2005). We also review de novo a district court‘s denial of a motion pursuant to
II. Count One
Each defendant asserts that the evidence admitted at trial was insufficient to support his or her conviction under
A. Sufficiency of the Evidence
In order to establish a conspiracy-to-defraud offense under
1. Evidence as to Stewart. Stewart argues that her defiance of the SAMs was open, not deceitful. One aspect of her defiance was undoubtedly public—the conveyance of Abdel Rahman‘s statements regarding the cease-fire and related matters to the Reuters journalist. But we agree with the district court that “[a] reasonable jury could certainly [have found] that Stewart gained access to Abdel Rahman [and thereby the information that she conveyed to the journalist] by deceit and dishonest means.” Sattar V, 395 F.Supp.2d at 89. “Without [Stewart‘s] agreement to abide by the SAMs and the other representations contained in her affirmations, she knew that she would not have been allowed to visit Abdel Rahman,” id.; see
Stewart insists that she acted with the intent, not to defraud the government, but to “zealously” represent her client.10 But the jury had a reasonable basis on which to disbelieve this, and to “disbelieve that zealous representation included filing false affirmations, hiding from prison guards the delivery of messages to Abdel Rahman, and the dissemination of responses by him that were obtained through dishonesty.” Id. at 90. Moreover, even if Stewart acted with an intent to represent her client zealously, a rational jury could nonetheless have concluded that Stewart simultaneously acted with an intent to defraud the government. A genuinely held intent to represent a client “zealously” is not necessarily inconsistent with criminal intent.
2. Evidence as to Yousry. Yousry argues that, as a translator who was taking direction from others, he did only what he was told to do and acted in good-faith reliance on the guidance and conduct of the members of the bar for whom he worked. Based on the evidence admitted at trial, however, a rational jury could have found that Yousry knew of and understood the terms of the SAMs.
Yousry had in his possession the December 1999 version of the SAMs as well as a copy of the underlying regulations. That version of the SAMs provided that Abdel Rahman‘s legal team could pass along to him “only inmate case-related correspondence,” and set forth a process for screening all non-legal mail. SAMs of Dec. 10, 1999, ¶ 7. The SAMs in Yousry‘s possession also specifically prohibited Abdel Rahman‘s communication with news media “in person, by telephone, by furnishing a recorded message, through the mails, through his attorney(s), or otherwise.” Id. ¶ 9. Yousry himself acknowledged that members of the legal team were not “to disclose any portion of their conversation with the Sheik to the media.” Excerpts from Draft of Dissertation of Mohammed Yousry at 29. Yousry also knew that Clark and Jabara had refused to relay messages from Abdel Rahman.
From this evidence, a reasonable factfinder could conclude beyond a reasonable doubt that Yousry knew that his assistance, by providing translation services, in facilitating Abdel Rahman‘s continued contact with members of al-Gama‘a violated the SAMs. Moreover, as with Stewart, Yousry‘s deceptive and evasive conduct during the course of his visits to Abdel Rahman undercuts his claim of good faith.
Yousry argues that the evidence established, at most, that he intended to violate the SAMs, not that he knew that doing so might constitute a crime. But even if he misunderstood the law in that respect, such a mistake provides no defense to a charge of criminal misbehavior. See Cheek v. United States, 498 U.S. 192, 199 (1991). The fact that Yousry was aware that his acts,
B. Propriety of the SAMs
1. Stewart‘s Argument. Stewart contends that the district court erred by preventing her from challenging the validity of the SAMs as part of her defense. She sought to argue that the Attorney General has no authority to have lawyers held criminally liable for violating the SAMs and that the SAMs are unconstitutionally vague as applied to her. Under Dennis v. United States, 384 U.S. 855, 866 (1966), however, Stewart‘s strategy of collaterally attacking the validity of the SAMs is futile.
As the Supreme Court recognized in Dennis, there are “appropriate and inappropriate ways to challenge acts of govern-11ment thought to be unconstitutional.” Id. at 867. There is “no reason for [federal courts] to consider the constitutionality of a statute at the behest of petitioners who have been indicted for conspiracy by means of falsehood and deceit to circumvent the law which they now seek to challenge.” Id. at 866. Stewart, like the defendants in Dennis, was indicted for engaging in a “voluntary, deliberate and calculated course of fraud and deceit.” Id. at 867. This is a “prosecution directed at [Stewart‘s] fraud[,] not an action to enforce the [law] claimed to be unconstitutional.” Id.11
The result may be different where the constitutionality of a law is “challenged by those who of necessity violate its provisions and seek relief in the courts,” id. at 865, or where the governmental action at issue was taken with no “colorable authority,” United States v. Barra, 149 F.2d 489, 490 (2d Cir.1945).12 But, as with Dennis, “[t]his is not such a case.” 384 U.S. at 865.
We have no basis upon which to entertain a doubt as to the authority of the Attorney General of the United States to
Stewart might have effectively challenged the SAMs by refusing to sign the affirmations in which she said she would abide by them. She might then have invoked the jurisdiction of the courts by bringing suit on Abdel Rahman‘s or her own behalf to challenge their validity. She might have argued—as she forcefully does here—that the SAMs interfered with her capacity to effectively represent Rahman. But she did not. Instead, she signed the affirmations. Having chosen that path, she cannot be heard to attack the validity of those measures when called to account for violating them, especially where, as here, her fraudulent and deceptive conduct endangered people‘s lives.
The district court did not err in preventing Stewart from challenging the validity of the SAMs as part of her defense, and the jury acted within its province when it found that Stewart intentionally and fraudulently subverted them.
2. Sattar‘s Related Arguments on Appeal. Sattar relies on Stewart‘s and Yousry‘s arguments with respect to Count One. For the reasons set forth above addressing those arguments, we conclude that they are also unpersuasive as applied to him.
III. Counts Two and Three
Only Sattar was charged in Counts Two and Three of the superseding indictment. He does not challenge the sufficiency of the evidence supporting his Count Two conviction for conspiring with Abdel Rahman, Taha, and others to murder persons in a foreign country, in violation of
IV. Counts Four and Five
Stewart and Yousry challenge their Count Five convictions for violating
dence was insufficient to support their conviction on either count, and contend that their conduct was constitutionally protected in any event.
A. History of the Charges
By way of background, the initial indictment charged all three defendants with violating
The government then filed a superseding indictment alleging that by essentially the same course of conduct, i.e., coordinating the surreptitious passage of al-Gama‘a messages to and from Abdel Rahman, Stewart and Yousry violated
Whoever, within the United States, provides material support or resources or conceals or disguises the nature, location, source, or ownership of material support or resources, knowing or intend
ing that they are to be used in preparation for, or in carrying out, a violation of [various enumerated statutes related to terrorism] or in preparation for, or in carrying out, the concealment of an escape from the commission of any such violation, or attempts or conspires to do such an act, shall be [subject to criminal punishment].
currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials.
As an initial matter, Stewart and Yousry challenge the sufficiency of the evidence supporting their convictions on this count. They also argue that the district court erroneously instructed the jury on the elements of a violation of section 2339A. In addition, they raise more general challenges to the statute, arguing that section 2339A does not criminalize the behavior alleged in the indictment, that the provision is unconstitutional as a multi-level inchoate offense, and that the statute is unconstitutionally vague as applied to them. We examine their arguments in the context of the statutory elements of the crime, addressing first the sufficiency arguments.
B. Elements of Section 2339A
1. Proof of the Underlying Conspiracy to Kill Persons Abroad.19
There was suffi
The government offered evidence that Sattar and Taha composed a fatwa in Abdel Rahman‘s name calling for “the killing [of] the Jews wherever they are (UI) and wherever they are found.” Audio Tr. Oct. 4, at 15. It also offered proof that this fatwa was communicated to Atia, an al-Gama‘a military leader. Although the evidence may not have established any particular plan of action to execute the fatwa, a reasonable jury could have found beyond a reasonable doubt from the fatwa‘s exhortations and Atia‘s readiness to act on it that there was a concrete, illegal objective to murder persons abroad.
A review of the transcripts of various intercepted telephone conversations introduced into evidence, particularly the September 18, 2000, conversation involving Sattar, Taha, and another party, bolsters this conclusion. The discussion goes well beyond the abstract and contemplates the coordination with Atia of violent actions, presumably along the lines of the Luxor massacre. In light of such evidence, a rational jury could have found beyond a reasonable doubt that the conspiracy as charged in Count Two existed.
2. Proof of Material Support to the Conspiracy.
Stewart and Yousry also assert that they did not provide material support in the form of “personnel” to the Count-Two conspiracy. A reasonable jury
The defendants argue that the government established only that they provided the underlying conspiracy with Abdel Rahman‘s “pure speech” and therefore did not provide “personnel” within any constitutional interpretation of section 2339A. The government does not deny that section 2339A may not be used to prosecute mere advocacy or other protected speech, but contends that the defendants were prosecuted for criminal actions that did not amount to protected speech.
Resolution of this dispute does not turn on whether the prosecution introduced evidence of “pure speech.” “Numerous crimes under the federal criminal code are, or can be, committed by speech alone,” and certain crimes “are characteristically committed through speech.” Rahman, 189 F.3d at 117. The issue is, instead, whether Abdel Rahman‘s statements were protected speech. We conclude that the statements were not protected such as to cast doubt on the convictions.
Words that are “the very vehicle of [a] crime” are not protected “merely because, in part, [the crimes] may have involved the use of language.” United States v. Rowlee, 899 F.2d 1275, 1278 (2d Cir.), cert. denied, 498 U.S. 828 (1990). As we recog
The dissemination of some of the speech introduced at trial might be viewed as nothing more than the expression of views on the broad political situation in Egypt. For example, in reaffirming that he was withdrawing his support for the cease-fire, Abdel Rahman said that he had “expressed [his] opinion and left the matters to [his] brothers to examine it and study it.” Statement for Release, Abdel Rahman, June 20, 2000.
But a reasonable jury could have found, in light of Abdel Rahman‘s role as “spiritual” leader of al-Gama‘a, that his messages were ultimately intended to sway al-Gama‘a members to end the cease-fire, and by implication to commit criminal acts of violence. Abdel Rahman‘s statements were therefore not an expression of opinion, but a call to arms.
The evidence establishes, moreover, more than a one-way broadcast of Abdel Rahman‘s views. Abdel Rahman‘s comments were made in direct response to solicitations of his views from other al-Gama‘a members who were seeking to effect an end to the cease-fire and to resume violence. In light of the information avail
3. Proof Regarding Knowing or Intentional Provision of Material Support.
Stewart and Yousry argue that the prosecution did not prove the requisite mental state to sustain their convictions. They contend that they were not aware of the existence of the conspiracy charged in Count Two and therefore could not have intended to aid it.
These arguments are unavailing. From the evidence at trial, a reasonable factfinder could have concluded that Stewart and Yousry knew (1) that an active group of people within al-Gama‘a including, most notably, Taha, sought to commit violent crimes but were hindered by the cease-fire and by those members of al-Gama‘a who sought to adhere to it; (2) that the support of Abdel Rahman—a key leader of the group—was critical to the continued maintenance of the cease-fire; and (3) that, in light of the letters and messages from Taha and Sattar that Yousry read to Abdel Rahman in prison, Abdel Rahman‘s particular opinion regarding the cease-fire—and not the view of any other person—would be dispositive on the question of whether al-Gama‘a members would continue to abide by the cease-fire. A reasonable factfinder could thus have concluded that Yousry and Stewart actively and intentionally facilitated communications between Abdel Rahman and al-Gama‘a, in part by engaging in various ruses during the course of their visits to Abdel Rahman, and thereby effectively delivered Abdel Rahman‘s order to commit violence. Stewart also did so by reaffirming to the press Abdel Rahman‘s stated withdrawal of support for the cease-fire, thereby dispelling any notion that the message came not from Abdel Rahman himself, but was instead fabricated by members of the pro-violence faction of al-Gama‘a.
C. Other Challenges with Respect to 18 U.S.C. § 2339A
1. Vagueness.
Section 2339A criminalizes the provision of material support or resources “knowing or intending” that they are to be used to assist in certain enumerated crimes of terrorism.
In analyzing the defendants’ arguments in this regard, we must focus on two major differences between the initial and superseding indictment.
First, the statutes upon which they were based differ. Unlike section 2339A, section 2339B penalizes the knowing provision of material support alone. Unlike section 2339A, section 2339B does not require for conviction proof that the defendant has provided support or resources with the knowledge or intent that such resources be used to commit specific violent crimes.20
As we have explained, the district court dismissed the section 2339B charges on the ground that they were unconstitutional as applied to the defendants. The basis for dismissal of the “communications equipment” charges was that the statute, as read to apply to the facts of this case, could “criminaliz[e] the mere use of phones and other means of communication [with] neither notice nor standards for [the statute‘s] application.” Id. And the basis for the dismissal of the “personnel” charges, as framed in the initial indictment, was that such a charge could criminalize the actions of “[s]omeone who advocates the cause of the [Foreign Terrorist Organization].” Id. at 359 (quoting Humanitarian Law Project v. Reno, 205 F.3d 1130, 1137 (9th Cir. 2000), cert. denied, 532 U.S. 904 (2001)) (brackets omitted). Without more, the district court concluded, such conduct cannot be punished without violating the First Amendment. See id.
The initial charges raised the possibility, moreover, that under the government‘s reading of the statute, “a lawyer, acting as an agent of her client, an alleged leader of an FTO, could [be] subject to criminal prosecution as a ‘quasi-employee.‘” Id. As we shall see, the charges in the superseding indictment do not pose this risk.
A statute is unconstitutionally vague as applied “if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits” or “if it authorizes or even encourages arbitrary and discriminatory enforcement.” Hill v. Colorado, 530 U.S. 703, 732 (2000); accord United States v. Rybicki, 354 F.3d 124, 132 (2d Cir. 2003) (en banc), cert. denied, 543 U.S. 809 (2004). As a general matter, scienter requirements may “ameliorate[]” concerns of improper notice. See Hill, 530 U.S. at 732.
We are satisfied that section 2339A‘s knowledge-or-intent formulation saves the statute from being unconstitutionally vague as applied here. Unlike the application of section 2339B proposed in the initial indictment, the superseding indictment required the jury to find that the defendants knew or intended the criminal uses to which the conspiracy would put the material support they provided, thereby eliminating concerns about inadequate notice. In other words, if Stewart and Yousry knew that their actions provided material support to a conspiracy to end the cease-fire and thereby unloose deadly acts of terrorism by al-Gama‘a and others, then they were on notice that what they were doing was prohibited by a statute that criminalizes the provision of material support “knowing or intending that [such sup
Stewart and Yousry argue nonetheless that several statutory terms, such as “personnel,” are unconstitutionally vague as applied to them. They note that “personnel,” undefined at the relevant time, applies equally to sections 2339A and 2339B, compare
We agree, however, with the district court‘s conclusion that “[t]he meaning of ‘personnel’ is clear in the context of § 2339A when applied to personnel who are to be used in preparation for, or in carrying out, specific crimes.” Sattar III, 314 F.Supp.2d at 301 n. 11. By applying, in the first indictment, the prohibition against providing “personnel” to the conspiracy to a circumstance in which the defendants provided themselves, the government created a situation in which the defendants could be punished for, in effect, providing themselves to speak out in support of the program or principles of a foreign terrorist organization, an activity protected by the First Amendment. See Sattar I, 272 F.Supp.2d at 359. The more limited charge that they knowingly or intentionally provided Abdel Rahman (as “personnel“), whose voice of command or words of approbation were a means by which al-Gama‘a members could prepare for, or carry out, terrorist acts in Egypt, does not carry the same risk with its corresponding constitutional implications.
In addition, the heightened scienter requirement in section 2339A constrains prosecutorial discretion, and ameliorates concerns of arbitrary and discriminatory enforcement. Similar scienter requirements have saved other statutes from void-for-vagueness challenges. See, e.g., Hill, 530 U.S. at 732; see also Colautti v. Franklin, 439 U.S. 379, 395 & n. 13 (1979) (citing cases); United States v. Curcio, 712 F.2d 1532, 1543 (2d Cir. 1983).
2. Nature of the Offense.
Stewart and Yousry also contend that Count Four, alleging a conspiracy to violate section 2339A, acts impermissibly as a charge of a “multi-level inchoate offense,” a “logical absurdity” that “violate[s] due process.” Stewart Br. 161-65. The gist of their argument is that the charge effectively criminalizes a “conspiracy to conspire,” thereby violating due process by extending criminal liability to a degree too remote from any substantive criminal offense to pass constitutional muster. Id. at 165-69.
As what seems to us to be a variation on the same theme, Stewart and Yousry assert that the district court erred by “impermissibly dilut[ing]” the proof required for conviction of the Count-Two conspiracy in the context of the material support convictions under section 2339A. Stewart Br. 158. But the government need not have established beyond a reasonable doubt that Stewart or Yousry engaged in a conspiracy to kidnap or commit murder abroad; neither was charged with doing either. Instead, both were charged with and convicted of violating section 2339A, and, as discussed, the evidence is sufficient to sustain the conviction on those charges. Stewart and Yousry do not, presumably because they cannot, suggest that Congress did not have the power to criminalize the relevant underlying conduct.
V. Counts Six and Seven
Stewart challenges her convictions on Counts Six and Seven for violating the blanket provisions of
whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry....
We conclude otherwise. On May 16, 2000, Stewart signed an affirmation stating that she would (“shall“) abide by the SAMs. On May 26, 2000, Stewart submitted the affirmation to the United States Attorney‘s Office for the Southern District of New York. On May 7, 2001, Stewart signed a revised affirmation to the same effect and telecopied it to the same office. Before, after, and between executing these affirmations, she helped smuggle messages to and from Abdel Rahman in violation of the SAMs.
Stewart at least thrice affirmed “under the penalties of perjury the truth” of certain statements. The May 16, 2000, statement reads in pertinent part:
I ... understand that neither I nor any member of my office shall forward any mail received from inmate Abdel Rahman to a third person. Nor shall I use my meetings, correspondence or phone calls with Abdel Rahman to pass messages between third parties (including, but not limited to, the media) and Abdel Rahman.
Stewart May 2000 Aff. (Gov‘t Ex. 7.) In the May 7, 2001, statement, Stewart affirmed:
I ... specifically understand that the meetings shall not be for the purpose of presenting statements to the defense team for further dissemination to third parties, including the media. I will only
allow the meetings to be used for legal discussion between Abdel Rahman and me.
Stewart May 2001 Aff. (Gov‘t Ex. 12.)
A reasonable factfinder was entitled to conclude that Stewart affirmed under penalty of perjury that she had the then-present intent to have her actions conform to the terms of the SAMs. From Stewart‘s smuggling messages to and from Abdel Rahman, the factfinder could conclude that the assertion about her intent was knowingly and willfully false when it was made. See United States v. Uram, 148 F.2d 187, 189 (2d Cir. 1945) (concluding that allegation of a false representation as to future use of loan proceeds was “an allegation of a present statement and the assertion of existing intent“); cf. United States v. Shah, 44 F.3d 285, 294 (5th Cir. 1995) (observing that “a promise may amount to a ‘false, fictitious or fraudulent’ statement if it is made without any present intention of performance and under circumstances such that it plainly, albeit implicitly, represents the present existence of an intent to perform“).
Stewart seeks support for her argument from Williams v. United States, 458 U.S. 279 (1982). There, the Supreme Court reversed a conviction of the defendant under
Williams does not apply to the conduct at issue here. A reasonable jury could have concluded that Stewart‘s affirmations that she would abide by the SAMs amounted to factual assertions regarding her then-present intent to abide by the SAMs. Based on her repeated affirmations, and her repeated violations of those affirmations, moreover, a reasonable jury could have concluded that at the time Stewart executed and submitted the affirmations at issue, she did not intend to abide by them—in other words, that her representations were knowingly false when made. On this basis, a reasonable jury could have properly concluded that Stewart violated section 1001 as charged in Counts Six and Seven.
VI. General Challenges to the Validity of the Convictions
In addition to their challenges to specific counts in the indictment, Stewart and Sattar make general assertions of error regarding the government‘s conduct during the course of the prosecution. Stewart argues that she was selectively prosecuted on account of her gender and political beliefs, and both Stewart and Sattar assert that the government‘s decision to file a superseding indictment following their successful efforts to dismiss several counts of the initial indictment constitutes vindictive prosecution.
The defendants also raise various challenges to the district court‘s case administration. First, they allege a variety of pretrial errors: in the denial of their motions to sever their trial from Sattar‘s; in the empaneling of an anonymous jury; in the denial of Stewart‘s motion to suppress certain evidence obtained pursuant to the
A. Selective Prosecution
Stewart argues that she was selectively prosecuted on account of her gender and political beliefs in violation of the Equal Protection Clause of the Fourteenth Amendment. This argument requires Stewart to establish that she was “treated differently from other similarly situated individuals” and that “such differential treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure [her].” Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001) (internal quotation marks omitted); accord United States v. Fares, 978 F.2d 52, 59 (2d Cir. 1992); United States v. Moon, 718 F.2d 1210, 1229 (2d Cir. 1983), cert. denied, 466 U.S. 971 (1984).
Stewart compares her treatment with that of Abdel Rahman‘s former lawyers Ramsey Clark and Abdeen Jabara, who, even though they allegedly violated the same SAMs as she did, were not prosecut
B. Vindictive Prosecution
Sattar argues that the district court erred in denying his motion to dismiss the Count-Two conspiracy charge in the superseding indictment because the institution of the charge was driven by prosecutorial vindictiveness. This argument is also without merit.
The government filed the original five-count indictment in April 2002. In it, Sattar, Stewart, Yousry, and another24 were
Sattar argues that the government‘s decision to file the superseding indictment and add the charge of violating section 956 “was a retaliatory act ... motivated by the embarrassment [the government] suffered as a result of the dismissal” of two central counts in the original indictment. Sattar Br. 17. He asserts that an inference of vindictive prosecution is supportable in two ways: First, the addition of Count Two—which carries a potential sentence of life imprisonment, a longer sentence than that authorized by the dismissed charge pursuant to section 2339B—“up[ped] the ante” for the consequences of conviction. Sattar III, 314 F.Supp.2d at 311. Second, the government could have brought the section 956 charge in the original indictment, inasmuch as it was based on information known to the government prior to the filing of the initial indictment, but the government declined to do so.
“[T]he decision as to whether to prosecute generally rests within the broad discretion of the prosecutor, and a prosecutor‘s pretrial charging decision is presumed legitimate.” United States v. Sanders, 211 F.3d 711, 716 (2d Cir.), cert. denied, 531 U.S. 1015 (2000) (citations and internal quotation marks omitted). Nonetheless,
We review a district court‘s factual findings on prosecutorial vindictiveness for clear error, and its legal conclusions de novo. United States v. Johnson, 171 F.3d 139, 140 (2d Cir. 1999) (per curiam). We review a district court‘s decision denying discovery on claims of prosecutorial vindictiveness for abuse of discretion. Sanders, 211 F.3d at 717.
“Th[e] need to avoid the appearance of vindictiveness has taken the form of a presumption of prosecutorial vindictiveness ..., applied when (but only when) the circumstances of a case pose a ‘realistic likelihood’ of such vindictiveness.” United States v. King, 126 F.3d 394, 397 (2d Cir. 1997) (citations and internal quotation marks omitted). The district court found no reason to presume that the actions at issue, which arose in a pretrial setting, were vindictive. See Sattar III, 314 F.Supp.2d at 311-12.
“The circumstances must present a realistic likelihood of vindictiveness that would be applicable in all cases, and any such presumption may be overcome by objective evidence justifying the prosecutor‘s action.” Sanders, 211 F.3d at 717 (citations and internal quotation marks omitted). “[T]his court has consistently adhered to the principle that the presumption of prosecutorial vindictiveness does not exist in a pretrial setting.” Paradise v. CCI Warden, 136 F.3d 331, 335 (2d Cir.), cert. denied, 525 U.S. 836 (1998)
Sattar‘s claim of actual, as opposed to presumptive, vindictiveness is also without merit. A finding of actual vindictiveness requires a showing that a “prosecutor‘s charging decision [is] a ‘direct and unjustifiable penalty,’ that resulted ‘solely from the defendant‘s exercise of a protected legal right.‘” Sanders, 211 F.3d at 716-17 (internal citation omitted). The evidence Sattar offers in this regard is that the government possessed the same information when preparing the original and superseding indictments, that the maximum punishment Sattar faced if convicted under the superseding indictment was greater than that he faced if convicted under the original indictment, and that the superseding indictment was the result of the district court‘s dismissal of the section 2339B material support charges in the original indictment. We have no warrant to conclude that the district court clearly erred in finding that the charging decision was not vindictive, or that the government was attempting to do anything more than hold Sattar criminally responsible for engaging in the underlying acts that form the basis of the indictment. See Paradise, 136 F.3d at 336. Put another way, it does not follow from the facts Sattar recites that the resulting charge was necessarily brought vindictively; for this reason the district court did not err in concluding otherwise.
C. Trial Administration
1. Alleged Pre-Trial Errors
a. Severance
Stewart and Yousry assert that the district court abused its discretion by
But the district court did not abuse its discretion in this respect. Count Two charged Sattar with conspiring to murder persons in a foreign country. Count Five charged Stewart and Yousry with providing and concealing material support to that conspiracy, and Count Four charged them with conspiring to provide and conceal that support. Most of the evidence against Sattar that Stewart and Yousry assert to have been unduly prejudicial to them—evidence submitted to establish the existence of the Count-Two conspiracy charge against Sattar—would have been admissible against Stewart and Yousry even had the trial been severed. See Sattar I, 272 F.Supp.2d at 380-81. This is so because the Count-Two conspiracy was an element of the crimes charged against Stewart and Yousry in Counts Four and Five, and the government would have been entitled, and expected, to elicit relevant evidence regarding its existence. “[T]he fact that tes
To the extent that evidence introduced at trial was not admissible against a particular defendant, the district court gave detailed—if necessarily voluminous—curative instructions to the jury. Neither Stewart nor Yousry proffer instructions that should have been given, but were not. Nor do they identify improper curative instructions that were given. This is not a case where “the risk that the jury [would] not, or [could] not, follow instructions [was] so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system [could not] be ignored.” Bruton v. United States, 391 U.S. 123, 135 (1968). Despite the length of the instructions, we presume, as did the district court, see Sattar V, 395 F.Supp.2d. at 104, that the jurors followed them, see, e.g., Richardson v. Marsh, 481 U.S. 200, 206 (1987) (noting that it is an “almost invariable assumption of the law that jurors follow their instructions“); United States v. Salameh, 152 F.3d 88, 116 (2d Cir. 1998), cert. denied, 525 U.S. 1112 (1999) (“Juries are presumed to follow their instructions.” (internal quotation marks and brackets omitted)). Neither Stewart nor Yousry provide us with a convincing reason to conclude that the district court abused its discretion in this regard.
b. Empaneling an Anonymous Jury
By order dated April 29, 2004, the district court granted the govern
c. Pre-Trial Suppression of Evidence
i. Suppression of Evidence Obtained Pursuant to FISA.
The defendants argue that evidence obtained from electronic surveillance pursuant to FISA should have been suppressed because such surveillance was improperly instituted for the purpose of a criminal investigation, rather than for the gathering of intelligence, and because FISA was unconstitutional as applied in this case.
By Opinion and Order dated September 15, 2003, the district court denied the defendants’ motions to suppress the relevant evidence. Sattar II, 2003 WL 22137012, at *22, 2003 U.S. Dist. LEXIS 16164, at *70. At a pretrial hearing held on April 9, 2002, the government informed the district court and the defendants that it had conducted a series of court-authorized electronic surveillance over a period of several years authorized under FISA, consisting of the electronic surveillance of defendant Sattar‘s home phone, his computer, [and] fax machine, [and] defendant Yousry‘s telephone. The government also monitored several prison visits, both audio and video, to Sheik Abdel Rahman over the past several
As part of its pretrial obligations under FISA, the government made extensive disclosures to the defendants, including over 85,000 audio recordings of voice calls, fax-machine sounds, and computer-modem sounds obtained through audio surveillance of telephone numbers used by Sattar and Yousry; the FBI‘s written summaries of approximately 5,300 voice calls that the FBI deemed to contain foreign intelligence information and therefore did not minimize; approximately 150 draft transcripts of voice calls; and approximately 10,000 pages of e-mails obtained through electronic surveillance of an e-mail account used by Sattar. The Government has also disclosed certain evidence solely to Stewart and Yousry, including audiotapes of 63 telephone conversations between the imprisoned Sheikh Abdel Rahman and his attorneys and Yousry, and audio and video recordings of three prison visits to Sheikh Abdel Rahman by his attorneys and Yousry on February 19, 2000, May 19 and 20, 2000, and July 13 and 14, 2001. Sattar II, 2003 WL 22137012, at *2, 2003 U.S. Dist. LEXIS 16164, at *7.
After reviewing the classified materials, the district court concluded that “all of the requirements of FISA were satisfied” and “each of the FISA surveillances was authorized by a FISA Court order that complied with the statutory requirements for such orders and was supported by the statements and certifications required by the statute.” Id. at *6, 2003 U.S. Dist. LEXIS 16164, at *21. The district court also concluded that this was “not a case where disclosure [of the classified FISA materials] was necessary or where a review of all of the materials suggested that due process required disclosure to the defendants.” Id. at *6, 2003 U.S. Dist. LEXIS 16164, at *22.
On appeal, Stewart argues that the materials generated pursuant to the FISA
Stewart‘s attacks on the constitutionality of the FISA statute are foreclosed by this Court‘s decision in United States v. Duggan, 743 F.2d 59 (2d Cir. 1984), which, despite its age, remains binding precedent in this Circuit. There, we concluded that “the procedures fashioned in FISA [are] a constitutionally adequate balancing of the individual‘s Fourth Amendment rights against the nation‘s need to obtain foreign intelligence information.” Id. at 73.
Congress created the FISA system in an attempt to accommodate “the legitimate need of Government for intelligence information and the protected rights of our citizens.” United States v. U.S. District Court, 407 U.S. 297, 322-23 (1972). As we have explained, “Congress passed FISA to settle what it believed to be the unresolved question of the applicability of the Fourth Amendment warrant requirement to electronic surveillance for foreign intelligence purposes, and to remove any doubt as to the lawfulness of such surveillance.” Duggan, 743 F.2d at 73 (internal quotation marks omitted). FISA‘s primary focus is surveillance for the purpose of gathering foreign intelligence information, which is defined to include “information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against [inter alia] international terrorism.”
FISA established a court (the “FISA Court“) comprised of designated district
In order to secure an order authorizing surveillance from a FISA Judge, the officer‘s application must meet the statutory requirements set forth in
Only after a FISA Judge has been satisfied that the application meets FISA‘s requirements will he or she authorize the surveillance. To enter an order approving surveillance, the FISA Judge must find that the application was properly filed and properly authorized by the Attorney General; that associated procedures designed to minimize the acquisition and retention of non-publicly available information concerning “United States persons” satisfy FISA‘s requirements, see
When the application is complete and properly certified by an executive branch official, however,
it is, under FISA, subjected to only minimal scrutiny by the courts. Congress deemed it a sufficient check in this regard to require the FISA Judge (1) to find probable cause to believe that the target of the requested surveillance is an agent of a foreign power; (2) to find that the application is complete and in proper form; and (3) when the target is a United States person, to find that the certifications are not “clearly erroneous.”
Duggan, 743 F.2d at 77. Stewart‘s argument that FISA does not ensure adequate
Although the purpose of the surveillance must be to obtain foreign intelligence information, “otherwise valid FISA surveillance is not tainted simply because the government can anticipate that the fruits of such surveillance may later be used as evidence in a criminal trial.” Id. at 78. To the contrary, the statute specifically contemplates the introduction of FISA surveillance evidence in criminal prosecutions. See
When such FISA information is introduced in the course of a criminal prosecution, and upon review of a suppression motion, the trial court has the opportunity to review the FISA Court‘s order, issued pursuant to
FISA applications are likely to contain allegedly sensitive information relating to perceived issues of national security. The applications are required to set forth how and why the Executive Branch knows what it knows, which may include references to covert agents and informers. For this reason, “‘ex parte, in camera determination is to be the rule.‘” Id. at 78 (quoting United States v. Belfield, 692 F.2d 141, 147 (D.C. Cir. 1982)). The district court has the
Stewart argues on appeal that the “primary purpose” of the FISA wiretapping in this case was to pursue a criminal investigation, not to collect foreign intelligence information. The district court, having reviewed the FISA materials, concluded that “all of the surveillance at issue was conducted with the appropriate purpose,” whether with a “primary purpose” or “a significant purpose” to obtain foreign intelligence information. Sattar II, 2003 WL 22137012, at *12-*13, 2003 U.S. Dist. LEXIS 16164, at *40-*42.
Upon our own in camera review of the underlying material and the district court‘s order filed under seal, we are confident that the district court did not err in so concluding. Since the interceptions meet the “primary purpose” test, we, like the district court, need not and do not address Stewart‘s argument that FISA‘s new and less demanding “significant purpose” test is unconstitutional. Cf. In re Sealed Case, 310 F.3d 717, 735 (FISA Ct. Rev. 2002) (rejecting the “primary purpose” test in favor of a “significant purpose” test). Similarly, based on the relevant evidence which, as adduced at trial, is outlined above, the district court did not err in finding there to be “ample probable cause to believe that the targets of the relevant surveillance—Sattar, Yousry, and Sheikh Abdel Rahman—were acting as agents of a foreign power” as defined by FISA, i.e., al-Gama‘a, “and that each of the facilities at which the surveillance was directed was being used, or was about to be used, by
Stewart also argues that she was an inappropriate target of the surveillance. As the district court noted, however, Stewart was never designated as a target in any of the applications at issue; her alleged co-conspirators were. “Once the proper preconditions are established with respect to a particular target, there is no requirement in FISA that all those likely to be overheard engaging in foreign intelligence conversations be named.” Duggan, 743 F.2d at 79. Because Stewart‘s co-conspirators were targeted pursuant to proper procedures, the Fourth Amendment did not require that Stewart also be identified or described as a target in order for her intercepted conversations to be used in a criminal prosecution. Id. at 79 n. 7.
Stewart further argues that the district court erred in declining to disclose FISA materials to her counsel. The district court may order disclosure of FISA materials “under appropriate security procedures and protective orders,” but “only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.”
As we have noted, in these circumstances disclosure is the exception and “‘ex parte, in camera determination is [] the rule.‘” Duggan, 743 F.2d at 78. The need to disclose materials to defense counsel may arise if the judge determines there to be “potential irregularities such as possible misrepresentation of fact, vague identification of the persons to be surveilled or
ii. Disclosure Regarding NSA Surveillance.
On June 16, 2006, Stewart moved to compel disclosure as to whether she or any of her co-defendants were subject to surveillance by the National Security Agency (“NSA“). The government filed, ex parte, a classified response to be reviewed in camera. At a hearing on September 25, 2006, the government insisted that its classified submission was properly filed under section 4 of the
compelling reason for filing the additional Order ex parte and under seal because it contains classified information that cannot reasonably be segregated from the other material in the Order, and that such a filing is consistent with the Classified Procedures Act and the rights of the defendants. See [United States] v. Yunis, 867 F.2d 617, 622-25 (D.C. Cir. 1989).
Id.
Through CIPA, Congress established procedures for handling classified information in criminal cases. “Classified information” is defined to include “information or material that has been determined by the United States Government pursuant to an Executive order, statute, or regulation, to require protection against unauthorized disclosure for reasons of national security.”
Section 4 of CIPA establishes procedures for discovery of classified information. It provides:
The court, upon a sufficient showing, may authorize the United States to delete specified items of classified information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure, to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove. The court may permit the United States to make a request for such authorization in the form of a written statement to be inspected by the court alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the statement of the United States shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.
This section “clarifies district courts’ power under
First, the district court must determine whether the material in dispute is discoverable, and if so, whether the state-secrets privilege applies. Id. at 80. It applies if “(1) there is ‘a reasonable danger that compulsion of the evidence will expose ... matters which, in the interest of national security, should not be divulged,’ and (2) the privilege is ‘lodged by the head of the department which has control over the matter, after actual personal consideration by that officer.‘” Id. at 80 (quoting United States v. Reynolds, 345 U.S. 1, 8, 10 (1953)). If the information is discoverable but the privilege applies, then the district court must determine “whether the information is helpful or material to the defense, i.e., useful ‘to counter the government‘s case or to bolster a defense.‘” Id. (citation omit
We review the district court‘s decision to issue a protective order under CIPA section 4 and
At the time of the district court‘s decision and order, our decision in Aref had not yet issued. As noted in the district court‘s public order denying the motion to compel, however, the district court relied on an opinion by a sister circuit embracing a test similar to that embraced by the Aref panel. Order, Oct. 17, 2006, at 2 (citing United States v. Yunis, 867 F.2d 617, 622-25 (D.C. Cir. 1989)).27
Here, the government has invoked the state-secrets privilege. It asserts that the details of the NSA‘s operations, including the surveillance vel non of any particular individual or group, implicate national security and are among “the nation‘s most guarded secrets.” Gov‘t Br. 389-90; id.
In light of these general concerns and the principles set forth in Yunis and Aref, and based on our own review of the underlying materials and the district court‘s sealed order, we are satisfied that the district court did not abuse its discretion or otherwise err in denying Stewart‘s motion to compel disclosure.
We note, as we did in Aref, which post-dated the district court‘s order here, the absence of a formal public “claim of privilege[] lodged by the head of the department which has control over the matter, after actual personal consideration by that officer.” Reynolds, 345 U.S. at 7-8; see Aref, 533 F.3d at 80. As in Aref, we conclude that in the pre-Aref context, such a flaw “is not necessarily fatal,” and that “[i]t would ‘be of little or no benefit’ for us to remand for the purpose of having the department head agree that disclosure of the classified information would pose a risk to national security here.” Aref, 533 F.3d at 80. But the absence of the formal claim is not a trivial matter. We do not demean it. We expect that, in light of the holding in Aref, we will not need to address this issue in appeals from future prosecutions in which the state-secrets privilege is invoked as the government is now well-informed of this obligation. Cf. id. (“Based on our holding today ... we trust that this issue will not arise in future CIPA cases.“).
We reject Stewart‘s claim that the district court erred in reviewing materials ex parte and in camera. As we noted in Aref, “[b]oth CIPA section 4 and Rule 16(d)(1) authorize ex parte submissions.... When the ‘government is seeking to withhold classified information from the defendant, an adversary hearing with defense knowledge would defeat the very purpose of the discovery rules.‘” Aref, 533 F.3d at 81.
The CIPA procedures followed by the district court place all parties involved (except perhaps the government) at a substantial disadvantage: defendants are hampered in contesting the assertions that are being made to the court by the government; district courts and courts of appeals are deprived of the opportunity for an adversarial proceeding upon which they are typically dependent in attempting fairly and properly to resolve disputes; and the public, as well as the litigants, are deprived of the assurances that come with public scrutiny of the work of the courts. The procedures are also, of course, subject to abuse by the executive. But a method for protection of classified material is necessary, and these procedures have been established by Congress and held to be constitutional. We, as did the district court, therefore accept them as a necessary, if imperfect, accommodation of the varied interests implicated.
2. Alleged Trial Errors.
Both Sattar and Yousry challenge various evidentiary rulings made by the district court. Sattar argues that the court abused its discretion by admitting a book by Taha and a videotape of Taha, Osama Bin Laden, and other al-Gama‘a members encouraging violence, and by excluding news footage purporting to depict Israeli
We review a district court‘s evidentiary rulings for abuse of discretion. See United States v. Kelley, 551 F.3d 171, 174 (2d Cir.2009) (per curiam); United States v. Anglin, 169 F.3d 154, 162 (2d Cir.1999). Here, the district court did not abuse its discretion with respect to any such rulings.
We are guided by certain basic principles established by the Federal Rules of Evidence—that, as a general rule, “[a]ll relevant evidence is admissible,”
Taha‘s book was relevant and admissible as evidence of the existence of the Count-Two conspiracy to murder persons in a foreign country. The Bin Laden video was similarly admissible, and relevant to Taha‘s intent to murder or kidnap. The district court did not err in failing to find that the evidence was unduly prejudicial.
It was also within the district court‘s discretion to exclude both the news video, which it found to be of minimal relevance yet highly prejudicial and confusing, and Yousry‘s statements to the FBI, which it found to be essentially duplicative of Yousry‘s own testimony.
The district court made a “conscientious assessment of whether unfair prejudice substantially outweigh[ed] probative value,” Salameh, 152 F.3d at 110 (internal quotation marks omitted), and did not otherwise abuse its discretion in making this assessment. We therefore will not disturb its judgments on these grounds.
3. Allegations of Juror Misconduct.
It was brought to the district court‘s attention after the jury rendered its verdict that a juror, referred to by the parties as “Juror # 39,” had come forward with allegations concerning improprieties during the jury‘s deliberations. The defendants requested that the district court “‘follow up’ and conduct an inquiry” into these allegations. Sattar IV, 395 F.Supp.2d at 74-78. By written opinion, the district court denied the request. Id. Sattar argues on appeal that the district court‘s actions were an abuse of its discretion, insisting that the court should have met, post-verdict, with Juror # 39 to conduct an inquiry. We disagree.
The district court properly construed the request as one for an evidentiary hearing, and concluded that there was no “clear, strong, substantial and incontrovertible evidence ... that a specific, non-speculative impropriety has occurred,” United States v. Ianniello, 866 F.2d 540, 543 (2d Cir.1989), especially in light of the fact that the juror had “several opportunities to communicate directly with the court” regarding any potential improprieties, but failed to do so, Jacobson v. Henderson, 765 F.2d 12, 15 (2d Cir.1985). As the district court explained, “the fact that Juror # 39 had direct access to the Court and did not complain of any problems supports the conclusion that these allegations are post hoc efforts caused by
4. Cumulative Error Doctrine.
Yousry also argues on appeal that we should reverse under the cumulative error doctrine. But the defendants have not identified any error in the district court‘s rulings, “and the accumulation of non-errors does not warrant a new trial.” United States v. Lumpkin, 192 F.3d 280, 290 (2d Cir.1999).
VII. Propriety of the Sentences
The government appeals from the sentences imposed on the defendants, asserting that they are unreasonable and unduly lenient. The government‘s principal brief was submitted prior to the Supreme Court‘s decisions in Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), which, as recognized by this Circuit in its en banc decision in United States v. Cavera, 550 F.3d 180 (2d Cir.2008), have significantly altered the landscape of sentencing jurisprudence. The Supreme Court issued both Gall and Kimbrough before the government filed its reply brief and oral argument took place, but not before this Circuit had spoken in Cavera.29
A. Standard of Review
The principles that guide our review of the district court‘s sentences are, “at first glance, beguilingly simple.” Cavera, 550 F.3d at 188. Generally, we review for abuse of discretion. Id. at 189. That “deferential” scrutiny “encompasses two components: procedural review and substantive review.” Id.
1. Procedural Review.
We first determine whether the sentence was procedurally reasonable. See id. Ordinarily, the district court must first correctly calculate the appropriate range set forth by the United States Sentencing Guidelines. Id. at 190. Then it “must form its own view of the nature and circumstances of the offense and the history and characteristics of the defendant,” id. at 188, as mandated and guided by
District courts are “generally free to impose sentences outside the recommended [Guidelines] range” but “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Id. at 189 (citations and internal quotation marks omitted).
Thus, a district court “must satisfy us that it has ‘considered the parties’ arguments’ and that it has a ‘reasoned basis for exercising [its] own legal decisionmaking authority.‘” Id. at 193 (quoting Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)) (brackets in Cavera). When a court commits “significant procedural error,” we may “remand to the district court so that it can either explain what it was trying to do, or correct its mistake and exercise its discretion anew ... rather than ... proceed[ing] to review the sentence for substantive reasonableness.” Id. at 190 (citations and internal quotation marks omitted).
2. Substantive Review.
Once we are satisfied that a sentence was procedurally proper, we then review the district court‘s determination for substantive reasonableness, “tak[ing] into account the totality of the circumstances, giving due deference to the sentencing judge‘s exercise of discretion, and bearing in mind the institutional advantages of district courts.” Id. at 190. Our role is no more than to “patrol the boundaries of reasonableness.” Id. at 191. Indeed, we “must defer heavily to the expertise of district judges,” id. at 193, and will “set aside a district court‘s substantive determination only in exceptional cases where the trial court‘s decision cannot be located within the range of permissible decisions,” id. at 189 (internal quotation marks and emphasis omitted).
We do not “presume that a non-Guidelines sentence is unreasonable,” nor do we “require ‘extraordinary’ circumstances to justify a deviation from the Guidelines range.” Id. at 190 (quoting Gall, 128 S.Ct. at 595). In evaluating a sentence‘s substantive reasonableness, “we may take the degree of variance into account and consider the extent of a deviation from the Guidelines.” Id. We may “consider whether the factor, as explained by the district court, can bear the weight assigned it under the totality of circumstances in the case.” Id. at 191. “[A] major departure should be supported by a more significant justification than a minor one.” Gall, 128 S.Ct. at 597. “But we must not employ a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.” Cavera, 550 F.3d at 190 (internal quotation marks omitted).
Some decisions by the district court may be entitled to more deference than others. For example, as both the Supreme Court and we have noted, variations from the Guidelines “may attract greatest respect when the sentencing judge finds a particu
But such “closer review” is less appropriate where the Guideline in question is not based on empirical data and national history. The issuance of that sort of Guideline “do[es] not exemplify the Commission‘s exercise of its characteristic institutional role.” Id. “[A] categorical disagreement with and variance from [such a] Guideline[],” or, at least from the crack cocaine Guidelines, “is not suspect.” Spears v. United States, — U.S. —, 129 S.Ct. 840, 843, 172 L.Ed.2d 596 (2009) (per curiam).
The Supreme Court has yet to address fully the contours of the “respect” that should be afforded to “an inside the heartland’ departure,” id., from Guidelines created by the Commission pursuant to its characteristic institutional role. Such a departure would “necessarily [be] based on a policy disagreement with the Guidelines” and would “necessarily disagree[] [with the Guidelines] on a ‘categorical basis.‘” Id. We have recognized, however, that “some Guidelines enhancements and reductions apply without modulation to a wide range of conduct.” Cavera, 550 F.3d at 192. Thus, “a district court may find that even after giving weight to the [factors that drive the enhancement or reduction] there is [still] a wide variety of culpability amongst defendants and, as a result, impose different sentences based on the factors identified in § 3553(a).” Id. Of course, irrespective of whether the conduct is found to be inside or outside the “heartland,” the “district court must explain its reasons for its chosen sentence.” Id.31
Affording greater discretion to the district courts may result in greater apparent disparities in sentences. But “the Supreme Court has made clear its view that disparities in sentences imposed by different district judges are more likely to reflect justified differences than are those arising from differences of opinion among appellate panels.” Cavera, 550 F.3d at 193.
B. Application to This Case
The government‘s principal claim of error on appeal is that the district court abused its discretion by imposing unreasonably lenient sentences. The government also argues that the district court erred as a matter of law by failing to apply the Guidelines terrorism adjustment,
1. Yousry‘s Sentence.
The district court initially calculated Yousry‘s Guidelines range based on a total offense level of 28 and a criminal history category of I, for a range of 78 to 97 months. According to the government, Yousry‘s applicable Guidelines range should have been enhanced in accordance with the terrorism enhancement provided by the Guidelines,
Upon consideration of the various factors set forth in
a. Guidelines Calculations
We review the district court‘s interpretation of the Guidelines de novo, and the district court‘s findings of fact for clear error. United States v. Legros, 529 F.3d 470, 474 (2d Cir.2008). We interpret the Guidelines as though they were a statute, giving the words used their common meaning. United States v. Kirvan, 86 F.3d 309, 311 (2d Cir.1996).
(a) If the offense is a felony that involved, or was intended to promote, a federal crime of terrorism, increase by 12 levels; but if the resulting offense level is less than level 32, increase to level 32.
(b) In each such case, the defendant‘s criminal history ... shall be Category VI.
an offense that—
(A) is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct; and
(B) is a violation of [any one of many statutes, including
18 U.S.C. § 2339A , relating to the provision of material support to terrorists, and18 U.S.C. § 956(a)(1) , relating to conspiracies to murder persons abroad].
The enhancement is not limited, however, to offenses that are themselves federal crimes of terrorism. By including the “intended to promote” language, the drafters of the Guideline “unambiguously cast a broader net.” United States v. Mandhai, 375 F.3d 1243, 1247 (11th Cir.2004), cert. denied, 549 U.S. 923, 127 S.Ct. 284, 166 L.Ed.2d 217 (2006). The criminal conduct at issue need not itself meet the statutory definition of a federal crime of terrorism if “a goal or purpose [of the defendant‘s act] was to bring or help bring into being a crime listed in
The district court declined to apply the terrorism enhancement to Yousry‘s sentence. The court explained:
This is a motivational requirement and focuses on the defendant‘s purpose. The government has conceded the lack of motivation or purpose and has failed to show that the defendant‘s offenses were calculated to influence or affect the conduct of government by intimidation or coercion or to retaliate against government action.
Sent‘g Tr. 143-44; see
Nonetheless, the government argues that the enhancement is appropriate despite the fact that Yousry has committed neither a federal crime of terrorism nor any other crime with the intent to promote such a crime. According to the government, the enhancement applies because Yousry‘s offense was “a felony that involved ... a federal crime of terrorism.”
The government maintains that any motivational requirement imposed by the terrorism enhancement can be imputed to Yousry from his co-conspirators’ relevant conduct under
[A]djustments in Chapter Three [including the terrorism enhancement] shall be determined on the basis of the following:
(1)(A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and
(B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense....
But sections
We have examined the other arguments made by the government in support of its expansive reading of the “involved” prong of the terrorism enhancement and we find them to be similarly without merit.
b. Section 3553(a) Factors
We conclude, then, that the district court properly calculated Yousry‘s Guidelines range to be 78 to 97 months. We must therefore determine in light of that range and the totality of the circumstances whether Yousry‘s sentence of 20 months of imprisonment, imposed following the district court‘s
We need not outline again the nature of the crimes of which Yousry was convicted. We focus instead on the reasons given by the district court in support of its downward variance.
First, the court found that Yousry‘s conduct was “unusual and f[e]ll outside the heartland of material support for terrorist activity.” Sent‘g Tr. 150. “[A] district court‘s decision to vary from the Guidelines ‘may attract greatest respect when the sentencing judge finds a particular case outside the “heartland” to which the Commission intends individual Guidelines to apply.‘” Cavera, 550 F.3d at 192 (quoting Kimbrough, 128 S.Ct. at 574-75). We perceive no basis for concluding that the district court erred in deciding that to be the case with respect to Yousry, particularly because he was acting as a translator, not a lawyer or other professional.
Second, the district court found that “no actual harm to victims occurred” although the court was “well aware that such harm is not required and that if such harm occurred the guideline range would be higher.” Sent‘g Tr. 150. We conclude that it was not unreasonable for the district judge to decide that the fact that no injury occurred in the case mitigated the gravity of Yousry‘s offense.33 The criminal
Third, the court noted that although Yousry‘s offenses were “plainly serious,” his “role in the offenses was subservient to the others involved” in the conspiracy. Sent‘g Tr. 150. The Guidelines were “intended to eliminate national disparity,” but “[w]e do not, as a general matter, object to district courts’ consideration of similarities and differences among co-defendants when imposing a sentence.” United States v. Wills, 476 F.3d 103, 109, 110 (2d Cir.2007) (emphasis omitted), abrogated on other grounds by Kimbrough, 128 S.Ct. at 574-75, as recognized in Cavera, 550 F.3d at 191; accord United States v. Williams, 524 F.3d 209, 216 (2d Cir.2008). We also defer to the district court‘s conclusion that Yousry‘s conduct was less culpable than that of his co-conspirators. On this basis, we conclude that the district court did not err by giving weight to this factor.
Fourth, the district court found that Yousry “did not engage in the offenses for profit and ... did not support or believe in the use of violence to achieve what he wanted.” Sent‘g Tr. 150. These facts mitigate the gravity of the conduct at issue. They also affect consideration of the “history and characteristics of the defendant” and the need to “protect the public from further crimes of the defendant” and to “afford adequate deterrence.”
The district court did not err in finding that Yousry was not motivated by potential profit and did not believe in the use of violence. Nor did it err in considering these factors while fashioning a non-Guidelines sentence for him. In evaluating culpability, we cannot discount the relevance of the defendant‘s motivations—i.e., whether mercenary, see, e.g.,
Fifth, the district court found that Yousry‘s conviction made it “doubtful that the defendant could pursue” his career as an academic or translator, and therefore that the need for further deterrence and protection of the public is lessened because the conviction itself “already visits substantial punishment on the defendant.” Sent‘g Tr. 151. The district court is specifically required by
Sixth, the district court found that Yousry provided “extensive ... cooperation” to the government following the terrorist attacks of September 11, 2001. Sent‘g Tr. 151. The court concluded that this cooperation “demonstrates a willingness to help law enforcement and reduces the need for rehabilitation and deterrence.” Id. We defer to the district court‘s evaluation of the extent of Yousry‘s cooperation. And of course, use of a defendant‘s cooperation to justify significant variances or departures from the otherwise applicable Guidelines calculations is commonplace. The government argues that Yousry‘s assistance was not as extensive as the district court found it to be, but we have been given no cause to question the court‘s relevant findings of fact or the manner in which it accounted for them in sentencing.
Seventh, the court found that Yousry “will not be in a situation to commit the offenses of conviction again,” because “it is unlikely that he will ever be able to serve as an interpreter in an official capacity.” Id. We defer to this finding, too. It is not error for a district court to evaluate, based on the defendant‘s individual circumstances, the extent of punishment “necessary to deter [him] from engaging in future criminal conduct or to protect the public from his future criminal acts.” Gall, 128 S.Ct. at 602; see
The district court did not, of course, assign precise weights to particular factors. Doing so would presuppose “the existence of some ascertainable method of assigning percentages to various justifications,” and would constitute a species of “mathematical approach” which has been expressly disavowed by the Supreme Court as “a classic example of attempting to measure an inventory of apples by counting oranges.” Gall, 128 S.Ct. at 596.
In evaluating the ultimate substantive reasonableness of Yousry‘s sentence, we must determine, under the totality of the circumstances, whether these various factors can “bear the weight” assigned to them by the district court. We are satisfied that they can. We are equally satisfied that the district court “consider[ed] the extent of the deviation and ensure[d] that the justification [was] sufficiently compelling to support the degree of variance.” Id. at 597.
In conducting our review, we are further satisfied that the district court did not ignore the Guidelines or “treat them merely as a body of casual advice.” Cavera, 550 F.3d at 189 (internal quotation marks omitted). Even were we inclined to think that the district court did not appreciate the weight of the Guidelines—which, as we say, we are not—in light of all of the
2. Sattar‘s Sentence.
The district court calculated Sattar‘s total offense level to be 43 and his criminal history category to be VI, for a Guidelines “range” of life imprisonment. But in conducting its own independent review, as guided by
a. Guidelines Calculation
The district court calculated Sattar‘s sentence, as it did Yousry‘s, under the November 2000 Guidelines. The court ultimately adopted the recommendations of the Probation Department in making its Guidelines calculation, except insofar as the district court added enhancements based on Sattar‘s obstruction of justice.
i. Enhancements. Sattar‘s Guidelines “range” of life imprisonment was arrived at based in part on the sentencing court‘s determination that the terrorism enhancement applied to both Sattar‘s Count-Two and Count-One conduct. The district court also enhanced Sattar‘s sentence on the ground that he obstructed justice. See
ii. Departures. Sattar moved for a downward departure based on the conditions of his confinement. The district court recognized that it was able to depart under the Guidelines for severe conditions of detention, but “because thus far th[ose conditions] reflect only strict security measures rather than an abuse of those measures,” it declined to do so. Sent‘g Tr. 33. Instead, the court concluded that it would take Sattar‘s conditions of confinement into account in considering the
b. Section 3553(a) Factors
The district court began its
First, the court concluded that the terrorism enhancement overstated the seriousness of Sattar‘s crime by transforming a Guidelines range of 97 to 121 months to life imprisonment. The court found that the otherwise-applicable Guideline range was “relatively low” because Sattar was convicted of conspiracy to murder and not of murder itself, and that the terrorism enhancement failed to account for the fact that “no injury actually occurred in this case.” Sent‘g Tr. 35. The district court noted that a variance downward from a Guidelines range driven upward by the enhancement is permissible when the enhancement “prevents the penalty from fitting the crime, based on the facts of th[e] record.” Id. at 35-36 (citing Mandhai, 375 F.3d at 1249).
Second, the terrorism enhancement put Sattar in the highest criminal history category, VI, “without a single past criminal history point.” Id. at 36. The district court concluded that such a jump “overstates [Sattar‘s] past conduct and the like
Third, the court noted that Sattar had been under “extremely restrictive conditions of confinement for 4-1/2 years,” and there “is every reason to expect that his conditions of confinement will continue to be substantially more severe than the average prisoner.” Id. at 37. These conditions include being kept in a cell for 23 hours a day and under constant surveillance. As a result, the court concluded, “the punitive aspects of the defendant‘s confinement are increased and the deterrent effect of the defendant‘s confinement is also increased.” Id.
The court further noted that, for reasons explained in part under seal, a downward variance is warranted based on factors relevant to the history and characteristics of the defendant and the need to afford adequate deterrence.34 The district court observed that based on the totality of the circumstances and on its review of cases presented by the government as comparators, Sattar‘s sentence of 24 years’ incarceration does not promote unwarranted sentencing disparities.
c. Analysis
The government‘s principal argument on cross-appeal is that Sattar‘s sentence is substantively unreasonable in light of his conduct and “long-term dedication to violence.” Gov‘t Reply Br. 39. We have no quarrel with the government as to the nature and quality of Sattar‘s conduct. Neither, to any significant extent, did the district court. It considered, at length, the seriousness of Sattar‘s crimes.
“[A] sentence outside the Guidelines carries no presumption of unreasonableness.” Irizarry v. United States, 553 U.S. 708, 128 S.Ct. 2198, 2202, 171 L.Ed.2d 28 (2008). “[T]he Guidelines are only one of the factors to consider when imposing sentence....” Gall, 128 S.Ct. at 602. Taking those precepts as a starting point, we are satisfied that in fashioning a non-Guidelines sentence, the district court did not clearly err in according weight to the factors it identified. As we recently noted in Cavera, “at the procedural part of review, we will not categorically proscribe any factor ‘concerning the background, character, and conduct’ of the defendant, with the exception of invidious factors.” Cavera, 550 F.3d at 191. The object is always to fashion a sentence “sufficient, but not greater than necessary” to accomplish the purposes set forth in
We have recognized that “the Sentencing Commission had a rational basis for creating a uniform criminal history category for all terrorists under [U.S.S.G.] § 3A1.4(b), because even terrorists with no prior criminal behavior are unique among criminals in the likelihood of recidivism, the difficulty of rehabilitation, and the need for incapacitation.” United States v. Meskini, 319 F.3d 88, 92 (2d Cir.), cert. denied, 538 U.S. 1068, 123 S.Ct. 2240, 155 L.Ed.2d 1125 (2003). But in the same virtual breath, we said, “[a] judge determining that § 3A1.4(b) over-represents ‘the seriousness of the defendant‘s past criminal conduct or the likelihood that the defendant will commit other crimes’ always
And even with enhancements of magnitude—i.e., those that “sharply increase the recommended sentences“—there still may be “a wide variety of culpability amongst defendants.” Cavera, 550 F.3d at 192. There may therefore be “different sentences based on the factors identified in
The district court is also in the best position to make an individual determination about the “history and characteristics” of a particular defendant, and to adjust the individualized sentence accordingly. See
It was not unreasonable for the district court to conclude that the severity of the conditions of confinement would increase the severity of the punishment and the amount of deterrence associated with a given term of imprisonment in light of the particular conditions of confinement under which Sattar is incarcerated. The district court did not abuse its discretion in varying downward based on those conditions here. We think that the factors upon which the district court relied in determining Sattar‘s appropriate sentence can “bear the weight” the district court assigned to them. Cavera, 550 F.3d at 191.
We note, finally, that the court sentenced Sattar to more than twice what the maximum Guideline sentence would have been without the terrorism enhancement.
The sentence thus adequately reflected the severity of the crime.
3. Stewart‘s Sentence.
Before sentencing Stewart, the district court calculated her offense level under the November 2000 Guidelines to be 41, her criminal history category to be VI, and her Guidelines range to be 360 months, or 30 years, the statutory maximum. The court concluded, however, that a sentence of 28 months’ imprisonment was sufficient but no greater than necessary to accomplish the purposes set forth in
a. Guidelines Calculations
i. Enhancements. Over Stewart‘s objection, the district court concluded that the terrorism enhancement of
The district court noted that the terrorism enhancement automatically placed Stewart in criminal history category VI. The court appeared to accept Stewart‘s argument that the enhancement overstated the seriousness of her past conduct or the likelihood that she would commit further crimes. Instead of adjusting the criminal history in the context of the Guidelines calculations themselves, however, the court found this to be “one of the rare cases” under United States v. Crosby, 397 F.3d 103, 112 (2d Cir.2005), where it would be more appropriate to determine the extent of the downward adjustment in the context of the
The government also sought an enhancement of Stewart‘s sentence on the ground that she obstructed justice. The Guidelines provide that where a defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction” and where the obstructive conduct related to the offense of conviction or a closely related offense, that the applicable Guidelines should be enhanced by 2 levels.
ii. Departures. Stewart sought a downward departure pursuant to
The district court declined to adjust the Guidelines calculations based on Stewart‘s argument that she committed her crime in order to avoid a perceived greater harm as set forth in “Lesser Harms” policy statement of the Guidelines. See
The policy statement further provides that a reduction in the otherwise applicable sentence might be appropriate where “conduct may not cause or threaten the harm or evil sought to be prevented by the law proscribing the offense at issue” such as “where a war veteran possessed a machine gun or grenade as a trophy, or a school teacher possessed controlled substances for display in a drug education program.”
Stewart also moved for a departure on the ground that her conduct was “aberrational.” A Guidelines policy statement provides that “[a] sentence below the applicable guideline range may be warranted in an extraordinary case if the defendant‘s criminal conduct constituted aberrant behavior.”
The district court thus reached its final Guidelines calculation, using the November 2000 Guidelines, with a total offense level of 41, a criminal history category of VI, and therefore a Guidelines “range” of 360 months, the statutory maximum. The government sought a term of life imprisonment; Stewart sought a non-incarceratory sentence.
b. Section 3553(a) Factors
Based on its
As the starting point for its
First, that Stewart‘s was an “atypical case” for the terrorism enhancement inasmuch as “the thrust of the violation was the provision of a co-conspirator to a terrorist conspiracy,” id. at 113; second, as with Sattar, that the structure of the terrorism enhancement prevented the Guidelines from taking into account the fact that no victim was harmed as a result of the offense as charged; and third, again as with Sattar, that the enhancement operat
The court therefore concluded that the terrorism enhancement was “dramatically unreasonable” and “overstates the seriousness of [her] past conduct and the likelihood that [she] will repeat the offense.” Id. Stewart “has no criminal history and yet is placed in the highest criminal history category equal to that of repeat felony offenders for the most serious offenses including murder and drug trafficking.” Id. at 113-14. The criminal history category was inappropriate, the court determined, in light of “the likelihood of recidivism, the difficulty of rehabilitation and the need for incapacitation.” Id. at 114.
The court found that Stewart‘s opportunity to repeat “the crimes to which she had been convicted will be nil” because she “will lose her license to practice law” and “will be forever separated from any contact with Sheikh Omar Abdel Rahman.” Id. Loss of her license to practice law both removes “the occasion for her offenses” and “is itself a punishment.” Id. at 116.
The district court viewed Stewart‘s personal characteristics as “extraordinary” and thought they “argue[d] strongly in favor of a substantial downward variance.” Id. at 114. The court described her as a dedicated public servant who had, throughout her career, “represented the poor, the disadvantaged and the unpopular, often as a Court-appointed attorney,” thereby providing a “service not only to her clients but to the nation.” Id. at 115-16. And “[h]aving spent her professional career often representing the poor, she is now, at the end of her career, financially destitute.” Id. at 115.
The court also took into account Stewart‘s ill health—she had, for example, suffered from cancer, for which she had undergone surgery and radiation therapy, and for which there is a significant chance of recurrence. The district court was of the view that in light of those conditions and her age, 67 years old at the time, prison would be “particularly difficult” for her, and that at her age, moreover, her sentence would “represent a greater portion of her remaining life than for a younger defendant and provide increased punishment.” Id. at 117.
c. Analysis
i. The Scope of Review.
The government‘s principal argument on appeal is that in light of the crimes of which Stewart stands convicted, her sentence was substantively unreasonable.
Like the district court, we are impressed by the factors that figured in Stewart‘s
We also recognize, as did the district court, that the terrorism enhancement may apply to persons who are culpable in substantially different degrees; that Stewart‘s culpability may well be understood to be less than Sattar‘s; and that the district court may differentiate between different levels of culpable conduct that nonetheless trigger the same substantial enhancement. Yet Stewart‘s sentence is strikingly low in light of what the district court correctly described as the “irreducible core of [her] extraordinarily severe criminal conduct,” Sent‘g Tr. 118, “which was committed over an extended period of time, involved repeated acts of deception, and involve[d] significant planning,” id. at 110.
We are obliged to “patrol the boundaries of [the] reasonableness” of a sentence. Cavera, 550 F.3d at 191. While we will not lightly deem unreasonable a sentence imposed by the judge who has “access to, and greater familiarity with, the individual case and the individual defendant before him than the [Sentencing] Commission or the appeals court,” Rita, 551 U.S. at 357-58, 127 S.Ct. 2456, we think that in light of the fact Stewart used her privileged status as a lawyer to facilitate her serious violation of the law, and possibly committed perjury at trial in an attempt to avoid punishment for her conduct, her sentence at least tests those “boundaries.”
ii. Stewart‘s Abuse of Her Status As a Member of the Bar.
Stewart argues that she did no more than serve as a zealous advocate for her client. That belief, if indeed she harbored it, gave her no license to violate the law. Stewart‘s 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.
The district court seemed to appreciate that fact, noting that Stewart “abused her position as a lawyer” in committing her crimes. Sent‘g Tr. 118. The court did not, however, explain how and to what extent the sentence reflected the seriousness of the crimes of conviction in light of the fact that Stewart was engaged as a member of the bar when she committed them.
The question therefore remains whether, because she was an experienced and dedicated lawyer acting as such when she broke the law in the manner that she did, her punishment should have been greater than it was.36
A comparison of Stewart‘s and Yousry‘s offense conduct serves to highlight the seriousness of Stewart‘s crimes and the seemingly modest sentence she received for it. Unlike Yousry, Stewart publicly disseminated “potentially lethal” statements on Abdel Rahman‘s behalf. Unlike Yousry, Stewart was convicted of making false statements to the government when she agreed to abide by the terms of the SAMs. Unlike Yousry, Stewart was a member of the bar and therefore acting as an officer of the court. See, e.g., United States v. Seltzer, 227 F.3d 36, 41 (2d Cir.2000). She was legally knowledgeable, highly experienced, and politically sophisticated, a lawyer acting in her professional capacity; he was a student working for her and Abdel Rahman as a translator.
Yet Yousry‘s sentence was 20 months; Stewart‘s only eight months longer.
iv. Stewart‘s Alleged Perjury.
Also unlike Yousry, Stewart may well have obstructed justice at trial. The government, supported by substantial evidence, argued that Stewart committed perjury at trial. The district court summarized the argument as follows:
First, the government contends that Ms. Stewart knowingly gave false testimony when she testified that she understood that there was a bubble built into the SAMs whereby the attorneys could issue press releases containing Abdel Rahman‘s statements as part of their representation of him.
The government also contends that Ms. Stewart testified falsely when she denied knowing who Taha was until learning about him in the course of the trial except for an article that she came across in her representation of Yasir Ahmed.
Sent‘g Tr. 111. The court, having thus recited the allegations at sentencing, declined to decide the issue.
As noted, the district court gave two reasons for not making such a finding. First, it concluded that because Stewart‘s Guidelines calculations had reached the statutory maximum of 360 months, a finding of obstruction of justice would not have changed the calculation. This would be true if the terrorism enhancement had been applied in Stewart‘s case, but the district court, after determining that Stewart‘s conduct was in the enhancement‘s “heartland,” may not have applied it. See infra 150-51. And even were it true, the question of Stewart‘s perjury is nonetheless relevant to her sentence pursuant to
The district court‘s second reason for declining to determine whether Stewart committed perjury during the course of her testimony was that it had determined that a non-Guidelines sentence was “reasonable and most consistent with the factors set forth in Section 3553(a).” Sent‘g Tr. 111-12. But as noted, we think that whether Stewart lied under oath at her trial is directly relevant to whether her
We conclude that by declining to decide whether Stewart committed perjury or otherwise obstructed justice, the district court procedurally erred.
v. Effect of Lack of Harm.
Noting particularly that the absence of harm was fortuitous and not the result of efforts by Stewart to prevent harm, Judge Walker argues that it was error both procedural and substantive for the district court to use that factor as a basis for downward variance, especially such a large one. The issue is discussed also in Judge Calabresi‘s opinion. This Court makes no ruling on that issue now, in the circumstances of Stewart‘s case. We note simply that it is a serious issue to be given consideration by the district court upon reevaluating Stewart‘s sentence. In view of the fact that the court must resentence, we think it preferable to defer this issue until after it has been reconsidered by the court, upon its consideration of the commentary in the opinions of Judges Walker and Calabresi.37
vi. The Terrorism Enhancement.
The terrorism enhancement is set forth in
Terrorism
(a) If the offense is a felony that involved, or was intended to promote, a federal crime of terrorism, increase by 12 levels; but if the resulting offense level is less than level 32, increase to level 32.
(b) In each such case, the defendant‘s criminal history category from Chapter Four (Criminal History and Criminal Livelihood) shall be Category VI.
Whether or not the district court applied the terrorism enhancement to Stewart in its Guidelines calculation may be subject to disagreement. Without reaching that issue, we nonetheless note that in light of the facts of this case and the judgments of conviction, which we affirm, the terrorism enhancement plainly applies as a matter of law to the district court‘s calculation of the applicable Guidelines range, irrespective of whether Stewart‘s behavior was “atypical” and whether it resulted in death or injury,
Whether or not the district court gave appropriate consideration in its section 3553(a) analysis to whether support of terrorism is an aggravating factor in this case, similarly, may be subject to disagreement. Judge Walker argues that the district court‘s sentence was deficient in this respect, and constituted both procedural and substantive error. But we need not decide whether error in this respect, if any, would be procedural or substantive. Without reaching these issues, and without suggesting that the district court was bound to follow either the Guidelines generally or any Guidelines enhancement specifically in imposing its section 3553(a) sentence, we note that the district court‘s section 3553(a) analysis must include consideration of whether support of terrorism is an aggravating factor in light of the court‘s obligation to consider “the nature and circumstances of [Stewart‘s] offense” and “the need for the sentence imposed ... to reflect the seriousness of the offense.”
d. Remand
A district court‘s failure to find particular facts will in no way impede our review in some, perhaps in most, situations; this, however, is not one of them. Especially in light of the absence of a finding that Stewart did not commit perjury at trial or otherwise obstruct justice, we think it preferable not to determine whether her sentence was substantively reasonable.
We therefore remand this matter to the district court for resentencing, in the course of which we direct the court to determine the issue of perjury and if it finds such perjury, to resentence Stewart so as to reflect that finding. 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
We have identified actions taken or not taken by the district court in imposing sentence that we conclude constituted procedural error and thus require resentencing. Other issues are raised by Judge Walker, who finds that they resulted in procedural error and substantive unreasonableness, and addressed by Judge Calabresi in response. To the extent we did not discuss or rule on those issues in this majority opinion, our silence should not be construed by the district court, or by others relying on this opinion, to mean that the majority has adopted Judge Calabresi‘s views or rejected Judge Walker‘s. We have not.
Although we find no procedural or substantive error in connection with the sen
After the district court completes the resentencing, jurisdiction may be restored to this Court by letter from any party, and the Office of the Clerk of this Court shall set an expeditious briefing schedule and refer the matter to this panel for further review.
CONCLUSION
For the foregoing reasons, we affirm the conviction of Stewart, but remand this cause to the district court for resentencing of Stewart, see United States v. Phillips, 431 F.3d 86, 90 (2d Cir.2005), and resentencing of Sattar or Yousry or both if the district court determines that they should receive different sentences in light of the sentence imposed on Stewart. Inasmuch as the current sentences will remain in effect as to Stewart and Yousry until the district court resentences Stewart—and Sattar or Yousry if it decides to do so—and in light of the fact that we affirm on all issues related to the guilt of all defendants, the district court is directed to order Stewart and Yousry to surrender forthwith to begin serving their terms of incarceration.
CALABRESI, Circuit Judge, concurring:
I join Judge Sack‘s opinion in full. I write separately to comment on our decision with respect to Stewart‘s sentence. In doing so, I do not wish to express any disagreement with the majority opinion, which has withheld a final judgment on various aspects of Stewart‘s sentence in light of the decision to remand. Where I express views on which the majority opinion is silent, I write only for myself.
When a judge of extraordinary ability and a well-earned reputation for exceptional judgment has spent as much time on a case like this, making many decisions of tremendous difficulty—which on review we are all in agreement were correct and wisely done—even the usual deference that the Supreme Court indicated should be paid to the district court‘s sentencing must constitute an understatement. This is especially so with respect to any notions as to the substantive reasonableness of a sentence. We may find that there are some procedural or technical matters that warrant more consideration by the district court, such as the question of whether Stewart committed perjury and the relevance of this in determining an appropriate sentence, given the district court‘s treatment of the terrorism enhancement. But for us—who have not been involved in the case and do not know all the backs and forths, some of which may even be best left not fully articulated—to second guess the district court‘s judgment seems to me to be precisely what both the Supreme Court and our court sitting en banc in United States v. Cavera, 550 F.3d 180, 194 (2d Cir.2008), have said we should not do. I join the majority opinion because I understand it to avoid second guessing, and because I believe it wisely provides the district court with an opportunity to explain further and perhaps to modify the sentence it has imposed. I write here to explore some of the principal issues on which this panel is divided and to give fuller expression to the importance of having appellate courts appreciate the limited, though still important, institutional role we play, particularly in a case such as this one, where the temptation to go beyond that role is so great.1
After calculating Stewart‘s sentence under the Guidelines, the district court applied the
A.
When the terrorism enhancement is applied, it has dramatic consequences on the applicable Guidelines range because it automatically increases both the offense level of a crime and the defendant‘s Criminal History Category. In Stewart‘s case, for example, the recommended sentence range without the enhancement was 78 to 97 months, while imposition of the enhancement resulted in a recommended sentence of 360 months, the statutory maximum.
We articulated this precise point in Cavera, recognizing that “some Guidelines enhancements and reductions apply without modulation to a wide range of conduct.” 550 F.3d at 192. We identified as examples several financial crimes where the recommended sentence under the Guidelines varies dramatically according to the money involved, but the culpability of an individual defendant might not be captured accurately by a single variable like financial impact. Id. Perhaps more closely analogous to the terrorism enhancement, we pointed to the Armed Career Criminal Guidelines, under which the recommended sentences for firearms offenses increase sharply if the defendant has a prior conviction for a “crime of violence“—an expansive term that places crimes like attempted burglary of a dwelling under the same umbrella as crimes like murder and rape. See id. (citing
We indicated in Cavera that when a district court faces such over and under-inclusive Guidelines recommendations and when, after considering the
In contrast, Judge Walker does appear to advocate a separate sentencing jurisprudence for terrorism cases. Judge Walker repeatedly seeks to distinguish terrorism-related crimes from other crimes, and even suggests that, as to harm in terrorism crimes, the sentencing reviews of appellate courts should run in one direction only. See Op. of J. Walker at 175-76. He also states that the wide variety of conduct encompassed by “terrorism support,” unlike the wide variety of conduct covered by other crimes, does not give rise to added district court discretion in sentencing.
B.
I am more ambivalent about the degree to which absence of harm is a valid ground on which to mitigate a sentence. I join the majority opinion in withholding judgment on this issue with respect to Stewart. My general view, however, is that while a district court ought to be careful about giving too much weight to a factor like harm that might vary based on events beyond the defendant‘s control, we should not preclude a district court from giving lack of harm some weight, even for some crimes of terrorism.
Whether it is fair to assign different levels of culpability in criminal sentencing to the same criminal conduct based on the fortuity of whether harm results has long been a contested question in Anglo-American jurisprudence. See H.L.A. HART, THE CONCEPT OF LAW 131 (1968) (“Why should the accidental fact that an intended harmful outcome has not occurred be ground for punishing less a criminal who may be equally dangerous and equally wicked?“). But whatever significance the consequences of a defendant‘s actions ought to have, it is an inevitable part of human nature—and our law—that we as a society do give consequences considerable weight when we mete out punishment and blame.4 This is deeply entrenched in our legal system. The majority opinion identifies the law of attempts as one generally accepted instantiation of this tendency, Maj. Op. at 139-40, but there are many others—such as crimes of culpable risk creation, like vehicular homicide. And while it is true that material support to terrorism is a complete crime rather than an inchoate one, and so fully punishable even if no further harm results, it simply does not follow that the amount of punishment may not at least in part depend on the harm that occurred. The level of punishment for a completed crime varies all the time based on the amount of harm that has occurred, and the Guidelines themselves often directly embrace such a policy.5
What is more, the Court has evidenced profound skepticism toward arguments that certain policy judgments, which require departing from the Guidelines, have implicitly been taken off the table as a result of congressional silence or inaction. See Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 570-73, 169 L.Ed.2d 481 (2007). As the Court explained, it is usually inappropriate to draw inferences from congressional silence on sentencing practices because Congress has shown that, when it wants to, it knows how to direct levels of sentencing in express terms. Id. at 571 (citing
I also rather doubt that we would be willing to apply consistently a principle that harm is irrelevant in terrorism cases. Consider two potential defendants, both of whom provide funds to different terrorists and have the requisite mens rea to support a conviction under
II.
I have focused to this point on factors the district court may consider procedurally when sentencing, but this case also illustrates the importance of our adherence as an appellate court to the right procedure for review of district court sentences. In Cavera, we explained that our review involves a two-step process. We first ensure that the district court has not committed procedural error, and only later engage in substantive review to examine whether the district court has rendered a sentence that is one of the “exceptional cases where the trial court‘s decision cannot be located within the range of permissible decisions.” 550 F.3d at 189 (internal quotations and emphasis omitted). Following this sequence of review is central to our limited role. Because district courts “have an institutional advantage over appellate courts” when making sentencing decisions, Koon v. United States, 518 U.S. 81, 98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), our job as a reviewing court is mainly to ensure that a district court‘s sentence “resulted from the district court‘s considered judgment as to what was necessary to address the various, often conflicting, purposes of sentencing.” Cavera, 550 F.3d at 189-90. Evaluating the substantive reasonableness of a sentence before we have found it free from procedural defect risks the substitution of our “considered judgment” for that of the district court.
When we identify procedural error, we have recognized the desirability of remanding to the district court to let it correct its mistake and “exercise its discretion
Other circuits have expressed a similar preference, and have sometimes stated it in even more categorical terms: first remand to allow a district court to correct procedural errors and only later review for substantive reasonableness.9 This is no formalism. It is consonant with our system of sentencing, which asks the district
Judge Walker argues that judicial efficiency compels us to identify substantive error at the same time we remand for procedural error. No one wants unnecessary appeals. But I fail to see any systemic advantages from issuing advisory opinions on the reasonableness of sentences that we are vacating, and hence that are now no longer really before us. The decision to remand for procedural unreasonableness presupposes that we believe the district court might not have imposed the same sentence but for the procedural defect. See, e.g., United States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009) (recognizing that procedural errors in sentencing are subject to harmless error rule). When we remand for procedural flaws, it may seem inviting to comment at the same time on other factors relied upon by the district court that, though procedurally proper, do not, in our judgment, bear the weight the district court attributed to them. It may even be appropriate in dicta to suggest our preliminary view on the matter. But it is not our role to weigh the individual
Let me repeat: Substantive reasonableness calls for review of the overall sentence, not individual factors. And
I do not mean to suggest an absolutist view on this matter. It may be that there are cases where there is procedural error that—even though it is not harmless—is sufficiently separate from any serious substantive concerns that we have, so as to make it plausible to address the two issues at once. I cannot think of any such cases offhand, however. And, for the reasons well expressed by the majority opinion in its decision to remand, this case is not one of them.
III.
Another, perhaps uncomfortable, issue deserves discussion. Stewart does not appear to have been the only member of Abdel Rahman‘s legal team both to agree to abide by the SAMs imposed upon Rahman and then subsequently to violate them. One of Rahman‘s lawyers, Abdeen Jabara, read to Rahman newspaper articles and letters from followers, while another, Ramsey Clark, the former Attorney General of the United States, acknowledged issuing a statement to the media on behalf of Rahman.10 Yet neither Jabara nor Clark was prosecuted for these apparent violations. This does not mean that
As to claims of selective prosecution, we have properly recognized that our scope of review is limited, for “the decision as to whether to prosecute generally rests within the broad discretion of the prosecutor.” United States v. Alameh, 341 F.3d 167, 173 (2d Cir. 2003). As the Supreme Court has explained, this is because “the decision to prosecute is particularly ill-suited to judicial review.” Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985). Yet this does not mean that unfettered (even when it is non-invidious) prosecutorial discretion over who gets charged, and for what, is categorically desirable. Quite the contrary: while prosecutorial discretion may be salutary in a wide variety of cases, when left entirely without any controls it will concentrate too much power in a single set of government actors, and they, moreover, may on occasion be subject to political pressure. The result may well be to produce disparities in the way similarly situated people are treated, disparities that our complex, Guidelines-with-district-court-discretion, system has sought to minimize. The district court‘s exercise of its sentencing discretion may provide the only effective way to control and diminish unjustified disparities, without operating in the blunt fashion of selective prosecution judicial review. It may reduce improper differences in treatment, without impinging on the executive‘s obligation to enforce the law.
Our case law provides support for this approach. For instance, while we have not required a district court to consider sentencing disparities among co-defendants, we have held that district courts are permitted to do so. As we explained, it is “appropriate for a district court, relying on its unique knowledge of the totality of circumstances of a crime and its participants, to impose a sentence that would better reflect the extent to which the participants in a crime are similarly (or dissimilarly) situated and tailor the sentences accordingly.” Wills, 476 F.3d at 110 (internal emphasis omitted). This, as has been recognized, allows district courts to provide a check against certain otherwise unbounded prosecutorial decisions, as to what charges to bring and as to whether to make substantial assistance motions with respect to only some defendants.11 It is not much of an extension to permit the
There are, of course, many reasons for prosecutors to fail to bring charges or to bring lesser charges than they could have, and some of these reasons are clearly irrelevant to the proper sentence of the person who has been charged and convicted. But other reasons may be relevant because they may suggest arbitrariness and can lead to abuse—such as the political clout of some potential defendants as against others. We as appellate judges are ill-suited to distinguish between relevant and irrelevant reasons in any given case. The same cannot be said, however, for a district court judge who has presided over a whole trial in which the behavior of uncharged or undercharged parties was part and parcel of the discussion.
This does not mean that when a district court issues a sentence that it should articulate its reliance on the prosecution‘s decision not to charge (or to undercharge) other parties. I am not sure. While we generally ask a district court to explain the reasons behind its sentence, and indeed indicated in Cavera that “a district court errs if it fails adequately to explain its chosen sentence, and must include an explanation for any deviation from the Guidelines range,” 550 F.3d at 190 (internal quotations omitted), there are some things that are perhaps best left unsaid by the district court, even though their potential relevance is apparent on the record.12 A prosecutor‘s decision to charge only some parties rather than others may be one of these things. The district court might quite reasonably want to avoid impugning the reputation of parties who have not been indicted or tried, and hence have not had the opportunity to assert innocence in open court. But that does not mean that a judge who has presided over a full trial may not have valid reasons to conclude that the failure to charge some potential co-defendants affects, under the
I am inclined to think that the district court should not be barred from considering the relevance of prosecutorial discretion in a particular case, and that our legal system should take advantage of the district court‘s unique position to consider a defendant‘s sentence “in its complete relevant context,” Wills, 476 F.3d at 110 (emphasis added). As appellate courts we should therefore also keep this issue in mind when we review a district court‘s sentence, and recognize it as a further reason to defer to a district court‘s sentencing judgments. In particular, though we may properly ask the district court to explain apparent sentencing anomalies among convicted defendants as both the majority opinion and the partial dissent do here, we should not forget that there might be even greater disparities between
IV.
Finally, I would be remiss if I did not follow the majority opinion in observing the fact that all of the acts for which Stewart was convicted occurred before the attacks of September 11, 2001, an event that illustrates in particularly excruciating fashion that results do matter to us. It does not diminish the gravity of Stewart‘s crimes to take judicial notice of their timing, and to recognize that our attitudes about her conduct have inevitably been influenced by the tragedy of that day. To suggest otherwise, and to ignore that 9/11 has profoundly influenced our retrospective assessment of the culpability of certain actions related to terrorists and terrorist organizations, would be to ignore reality. As the majority opinion says, Stewart herself might well have viewed her actions differently after 9/11 when the dangerousness of terrorism became so palpable, so stark, and—most important—so proximate. See Maj. Op. at 147-48. We must be careful then in judging Stewart based on lessons that we learned only after her—very serious—crimes were committed.15
WALKER, Circuit Judge, concurring in part and dissenting in part:
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. The district court termed these deliberate and horrific crimes of terrorism, for which the Sentencing Guidelines recommends 30 years’ imprisonment, “extraordinarily severe criminal conduct.” And yet the district court imposed a breathtakingly low sentence of 2 1/3 years. Because the majority fails to recognize that this sentence trivializes Stewart‘s extremely serious conduct with a “slap on the wrist” that is substantively unreasonable, and because the majority fails to appreciate the full extent of the district court‘s numerous procedural errors, I respectfully dissent.1
In imposing Stewart‘s comparably insignificant sentence, the district judge rejected entirely a major enhancement, established by the Sentencing Commission under Congress’ express command, that applies generally to the “material support” of terrorism. Despite finding that Stewart‘s crime was within the enhancement‘s “heartland,” Sent‘g Tr. 108, the district court found that the “atypicality” of Stewart‘s “material support” conduct in “provi[ding] a co-conspirator to a terrorist conspiracy,” Sent‘g Tr. 113, justified discarding the terrorism component of Stewart‘s crime in its
In addition to failing to make required findings on obstruction of justice based on evidence of Stewart‘s double perjury at trial, as the majority recognizes, Maj. Op.
Section 3553(a) of Title 18 of the United States Code, which governed Stewart‘s sentence, requires that every sentence take into appropriate account “the nature and circumstances of the offense[,] and the history and characteristics of the defendant“; “reflect the seriousness of the offense“; “promote respect for the law“; and “adequate[ly] deter[ ]” similar conduct in the future.
The majority appropriately acknowledges the fine reputation of the district court judge, a point with which I concur. And, like the majority, I commend the district court‘s management of this complex and difficult trial. However, the majority goes on to suggest, with Judge Calabresi‘s concurrence being quite explicit, that because of the district court‘s reputation, our review of the Stewart sentencing should be more deferential than would normally be the case. This court has never recognized two classes of judges—those who are so good that their judgment is beyond reproach, and all the rest. Indeed, no judge on any federal court, including the Supreme Court, can lay claim to infallibility. Great respect for a particular judge cannot be a basis for overlooking what, in my view, amounts to a distortion of our sentencing laws. For the foregoing reasons, and others that I will describe, Stewart‘s sentence must be vacated and she must be resentenced.
I. The Defendants’ Exceptionally Serious Criminal Conduct
Sheik Abdel Rahman, Stewart‘s client, is a dedicated terrorist leader with a large jihadist following in the Middle East, known as the “Islamic Group” among other names, Maj. Op. at 101, and a more discrete following in the United States. See United States v. Rahman, 189 F.3d 88, 104-05 (2d Cir. 1999) (per curiam). Abdel Rahman was locked up in federal prison in Rochester, Minnesota, to serve a life sentence imposed in 1996, after he was convicted for both (1) trying to wreak havoc in New York City by blowing up bridges, tunnels, and buildings, and (2) attempting to assassinate Egyptian President Hosni Mubarak. See id. at 148.
For two years, 2000 and 2001, the defendants in this case—Sattar, another jihadist with direct links back to Abdel Rahman‘s Egyptian followers; Stewart, Abdel Rahman‘s lawyer; and Yousry, Stewart‘s student interpreter—made sure that Abdel Rahman could continue to communicate with his jihadist cohorts. The Department of Justice had employed “Special Administrative Measures” (SAMs) specifically designed to prevent such communications while still enabling an imprisoned terrorist to speak to, and be effectively represented by his attorney. Compliance with the SAMs system largely depends upon the trust placed in the attorney. In accordance with the SAMs, Stewart, repeatedly swore under oath that she would not trans
Undeterred by the SAMs, Stewart, assisted by Yousry, executed a scheme of lies and deception against the government to keep the lines of communication open between Abdel Rahman and Sattar, and, through Sattar, the Egyptian jihadists. These communications included a declaration by Abdel Rahman that he was withdrawing his support for a tenuous cease-fire that, for some time, had aimed at curbing violent attacks by Abdel Rahman‘s followers upon targets in Egypt.2 Stewart even went so far as to deliver this statement to an Arab journalist on Abdel Rahman‘s behalf, which resulted in the message‘s wide dissemination through the media in the Middle East.
The federal crimes committed by the defendants are numerous. All three conspired to defraud the United States, in violation of
For such crimes, the advisory Sentencing Guidelines effective on November 1, 2000, applicable here, provided for lengthy sentences: life imprisonment for Sattar, 360 months’ imprisonment for Stewart, and 78 to 97 months’ imprisonment for Yousry. A Guidelines recommendation, of course, is just that—a recommendation—and a district judge has considerable discretion to sentence outside of the Guidelines. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007). The district court sentenced the defendants well below the recommended Guidelines ranges, lowering Sattar‘s sentence from a recommended life term to 24 years, Yousry‘s sentence from 78 months to 20 months, and Stewart‘s sentence from 360 months to a mere 28 months.
What is immediately striking about Stewart‘s sentence is not simply its extraordinary 92 percent reduction from the recommended Guidelines range,3 but also the fact that the actual term of incarceration imposed—2 1/3 years—is unprece-
II. Relevant Legal Standards
Our review proceeds under a “deferential abuse-of-discretion standard,” Gall, 128 S.Ct. at 591, and “a district court‘s decision to vary from the Guidelines ‘may attract greatest respect when the sentencing judge finds a particular case [to be] outside the “heartland” to which the Commission intends individual Guidelines to apply,‘” Cavera, 550 F.3d at 192 (quoting Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 574-75, 169 L.Ed.2d 481 (2007)). However, “closer review may be in order when the sentencing judge varies from the Guidelines based solely on the judge‘s view that the Guidelines range fails properly to reflect
The basic contours of our role are as follows. To evaluate procedural reasonableness, we must ensure that the district court, in imposing a sentence, followed the
We do not categorically proscribe any factor “concerning the [defendant‘s] background, character, and conduct,” with the exception of invidious factors.
As long as the judge is aware of both the statutory requirements and the sentencing range or ranges that are arguably applicable, and nothing in the record indicates misunderstanding about such materials or misperception about their relevance, we will accept that the requisite consideration [of the
§ 3553(a) factors] has occurred.
443 F.3d 19, 29-30 (2d Cir. 2006) (quoting United States v. Fleming, 397 F.3d 95, 100 (2d Cir. 2005) (emphasis from Fernandez omitted)). However, if the district court
In performing substantive reasonableness review, we must determine whether the district court‘s sentence is “located within the range of permissible decisions.” Cavera, 550 F.3d at 191 (internal quotation marks omitted). “[W]e take into account the totality of the circumstances, giving due deference to the sentencing judge‘s exercise of discretion, and bearing in mind the institutional advantages of district courts.” Id. at 190. But we must accept that such discretion is not boundless. “In sentencing, as in other areas, district judges at times make mistakes that are substantive.... Circuit courts exist to correct such mistakes when they occur.” Rita v. United States, 551 U.S. 338, 354, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). Because the
In light of a district court‘s wide discretion in sentencing, we do not “presume that a non-Guidelines sentence is unreasonable.” Cavera, 550 F.3d at 190. But when a district judge chooses to step away from the Guidelines, we “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Gall, 128 S.Ct. at 597; accord Cavera, 550 F.3d at 190. There is no “rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.” Gall, 128 S.Ct. at 595. Rather, our focus on the degree of deviation is derived from the “uncontroversial” proposition “that a major departure should be supported by a more significant justification than a minor one.” Id. at 597. Whatever the justification, its persuasive power depends in large part on the quality of its reasoning. Accordingly, in order to determine whether the sentencing court acted reasonably, we must examine how it reached its conclusions and determine how persuasive its stated reasons are in supporting its exercise of discretion. See id. at 600-02. If the district judge‘s reasoning is sound, “we will not second guess the weight (or lack thereof) that the judge accorded to a given [
III. Stewart‘s Sentence
A. The District Court‘s Findings and Conclusions
In sentencing Stewart, the district court began by calculating her sentencing range
The district court also declined to determine whether Stewart‘s conduct warranted a Guidelines enhancement for her potential obstruction of justice under
Stewart sought several downward departures under the Guidelines. First, she argued that she deserved a “lesser harms” departure pursuant to
Having found that the Guidelines called for Stewart to receive the statutory maximum of 360 months, the district court proceeded to its
The district court thus concluded that application of the full terrorism enhancement, “while correct under the guidelines, would result in an unreasonable result in this atypical case and produce a guideline range about quadruple the range without that enhancement.” Sent‘g Tr. 114. Accordingly, the district court proceeded to consider Stewart‘s sentence as if there was no terrorism component to her material support. Although the district court reached the appropriate Guidelines calculation, the district court, in its
Noting that “[t]he personal characteristics of the defendant are intertwined with several of the [
The district court then explained that Stewart‘s conviction would likely prevent her from ever practicing law again. The court found that this “is itself a punish-
The district court noted that Stewart was 67 years old, making “imprisonment ... particularly difficult on her.” Sent‘g Tr. 117. And the court found Stewart‘s history of overcoming cancer relevant because she had a “statistically significant chance of recurrence” and “suffers from other medical conditions including sleep apnea.” Sent‘g Tr. 117. The district court acknowledged that “[m]edical care can be delivered while in prison,” but found it “clear that prison will be particularly difficult for this defendant.” Sent‘g Tr. 117.
Despite noting that “age and physical condition are discouraged factors under the guidelines,” the district court concluded that, “[b]ecause imprisonment will be particularly hard on the defendant, a lesser sentence than otherwise called for by the advisory guidelines would be sufficient to accomplish the goals of Section
B. The District Court‘s Procedural and Analytical Errors
The majority raises four issues concerning Stewart‘s sentence: (1) It does not understand why Stewart‘s abuse of her position as a lawyer did not warrant a higher sentence, Maj. Op. at 148-49; (2) it does not understand why Stewart‘s sentence was only eight months longer than Yousry‘s, despite her significantly more egregious conduct, Maj. Op. at 148-49; (3) it finds that the district court procedurally erred by ignoring Stewart‘s potential perjury, which was relevant to her sentence under
Although I share the majority‘s four concerns and its conclusion that resentencing is required, the district court made several substantial errors that the majority refuses to identify as legal errors. Our error correcting function requires us to specify these errors now, when they are evident to the court, to prevent their repetition on remand and in other cases. Notably, because the district court‘s stated
Without a reasonable assessment of the seriousness of Stewart‘s crime, the district court could not reliably determine the sentence necessary to afford adequate general and specific deterrence for crimes of material support of terrorism. See
Moreover, the district court‘s error in assessing the seriousness of Stewart‘s crime prompted it to accord Stewart‘s age, health, and career mitigating weight that they cannot reasonably bear. The totality of these procedural errors, all originating in a disturbing misunderstanding of the seriousness of Stewart‘s conduct, contributed to a sentence that so trivializes the terrorism crimes of conviction as to present a rare occurrence in this court: a sentence that cannot be deemed to fall within the wide range of substantively reasonable choices available to a sentencing judge. Cf. Jones, 531 F.3d at 174.
1. Assessing the Seriousness of Stewart‘s Crime as Required by § 3553(a)(2)(A)
a. The Terrorism Enhancement
In 1994, Congress expressly mandated that the Sentencing Commission provide for a terrorism enhancement to ensure that crimes of terrorism were met with a punishment that reflects their extraordinary seriousness. See Violent Crime Control and Law Enforcement Act of 1994, Pub.L. 103-322, § 120004, 108 Stat. 1796, 2022. The Commission accordingly created an enhancement that operates both vertically, increasing the offense level to indicate the seriousness of the crime, and horizontally increasing the defendant‘s Criminal History Category to reflect the need for deterrence, regardless of the defendant‘s prior record. See
grave threat because of the dangerousness of the crime and the difficulty of deterring and rehabilitating the criminal, and thus that terrorists and their supporters should be incapacitated for a longer period of time.” United States v. Meskini, 319 F.3d 88, 91-92 (2d Cir.2003) (emphasis added). Under the applicable Guidelines, the enhancement increases the Guidelines sentence for a terrorism crime to a minimum of 210 months or 17 1/2 years; particularly serious crimes, such as Stewart‘s, have even higher sentences after the enhancement is applied.
Despite finding that Stewart‘s crime fell within the terrorism enhancement‘s “heartland,” the district court, in its
Because the district court offered unsound rationales for mitigating the seriousness of the terrorism aspect of Stewart‘s crime, effectively sentencing Stewart as if there was no terrorism component to her crime whatsoever, I find error. The error is evident in light of the values inherent in the Guidelines, which provide a very strong signal that crimes in furtherance of terrorism objectives are to be considered exceptionally serious, see
Offering its first rationale, the district court stated that Stewart‘s conviction was “an atypical case for the terrorism enhancement” despite concluding minutes
Sheik Abdel Rahman was no ordinary “coconspirator.” He was the head of the snake, a spiritual leader of a violent terrorist group whose words carried the force of a holy writ among his followers, and a man serving a life term for conspiring to bring deadly chaos to New York City. See Rahman, 189 F.3d at 103-11. After Abdel Rahman‘s influence had been sapped by the incarceration and isolation attending his lawful conviction, Stewart‘s crime specifically targeted undoing this protection by successfully enabling Abdel Rahman, as the Islamic Group‘s spiritual leader, to communicate with his followers and to support the renewal of bloodshed. Abdel Rahman‘s unique stature in the terrorist world surely renders Stewart‘s crime “atypical,” but this atypicality is an aggravating factor, not a mitigating one, thereby making Stewart more culpable than a defendant engaged in more “typical” material support, such as providing money or a cache of firearms to a terrorist group.
Although material support of terrorism may cover a “multitude of sins,” as Judge Calabresi‘s concurrence states, Op. of J. Calabresi at 153-54, this observation does no work in justifying a district court‘s complete disregard of the terrorism enhancement. Each “sin” has a critical feature in common; it supports terrorism. And Congress has sent a clear signal that this feature alone warrants enhancement of punishment. See
Beyond erroneously finding mitigating atypicality in “provi[ding] a coconspirator to a terrorist conspiracy,” Sent‘g Tr. 113, the district judge offered no further explanation of why Stewart‘s “atypical” conduct should lessen Stewart‘s culpability or justify ignoring the terrorism object of Stewart‘s material support as an aggravating factor in its
The district court‘s second rationale for giving no effect to the terrorism component of Stewart‘s material support — the absence of evidence that Stewart‘s terror
I take issue with the majority‘s failure to identify as procedural error the district court‘s deeply flawed reliance on the fortuity that Stewart‘s crime did not have the horrific consequences that she and Abdel Rahman intended. In doing so, the majority fails to appreciate the unique nature of terrorism support crimes and the enhanced punishment they warrant as envisioned by Congress. Judge Calabresi‘s concurrence mistakenly equates such crimes to ordinary crimes and attempts and erroneously permits the district court to eliminate the enhancement altogether primarily because the intended destruction of innocent life did not come to pass. Op. of J. Calabresi at 155.
Congress and the Sentencing Commission plainly intended for the punishment of crimes of terrorism to be significantly enhanced without regard to whether, due to events beyond the defendant‘s control, the defendant‘s conduct failed to achieve its intended deadly consequences. See United States v. Abu Ali, 528 F.3d 210, 264-65 (4th Cir.2008). Such intent is plain from the many criminal statutes and Guidelines unrelated to terrorism that specifically account for the level or absence of injury, while the material support statute and terrorism enhancement do not.11 Moreover, Congress amended Stewart‘s statute of conviction in 2001 so that causing death increased the statutory maximum from 15 years to life imprisonment.12 Contrary to the suggestion in Judge Calabresi‘s concurrence that the achievement of harm, like a two-way elevator, cannot be an aggravating factor unless the absence of such harm is a mitigating factor, Op. of J. Calabresi at 157, Congress has been unmistakably clear that, as a general matter, the achievement of actual harm may aggravate the seriousness of a terrorism crime but that the absence of proven harm does not mitigate such a crime. As such, the district court‘s decision to place substantial mitigating weight upon the absence of harm is thus so far contrary to the policy choices of Congress and the Commission
Unremarkably, courts routinely, and unflinchingly, apply the terrorism enhancement in the absence of proven harm.13 Here, the Egyptian police caught and killed Alaa Abdul Raziq Atia, a violent coconspirator, after Abdel Rahman and Stewart withdrew Rahman‘s support for the cease-fire, but before Atia could act on that message. This fortuity likely prevented Stewart‘s crime from harming victims, but “[f]ortuity has no bearing on culpability,” United States v. Mitchell, 178 F.3d 904, 910 (7th Cir.1999), nor does it mitigate to any degree the seriousness of Stewart‘s conduct.14 Abdel Rahman himself was appropriately given a life sentence even though his plans to assassinate President Hosni Mubarak and to blow up bridges, tunnels, and buildings in New York City were frustrated. See Rahman, 189 F.3d at 124-126. There is no reason why fortuity should have enabled Stewart, Rahman‘s supporter, enabler and coconspirator, to be sentenced as if no terrorism crimes had ever occurred.
In suggesting that the district court‘s heavy reliance on the lack of proven harm was reasonable, neither the majority‘s opinion nor Judge Calabresi‘s concurrence finds support in the case law, and I have found none. Judge Calabresi is reduced to observing that attempted crimes are sometimes treated differently from completed crimes, even when only fortuity separates the two. Op. of J. Calabresi at 154-55. But how the law treats attempts is besides the point. As the majority itself recognizes, material support of terrorism is “a substantive, not inchoate, offense.” Maj. Op. at 119. “This is an independent crime, complete in its most serious form when the [material support] is complete and nothing is added to its criminality by success or consummation, as would be the case, say, of attempted murder.” Spies v. United States, 317 U.S. 492, 498-99, 63 S.Ct. 364, 87 L.Ed. 418 (1943).
The Fourth Circuit recently agreed with my position, vacating a sentence of 30 years’ imprisonment because the district court impermissibly reduced, on the basis of lack of harm, the sentence of a defendant, as here, convicted of conspiracy to provide material support. Abu Ali, 528 F.3d at 264-65. It reasoned that “[t]o deviate on the basis of unrealized harm is to require an act of completion for an offense that clearly contemplates incomplete conduct. By definition, conspiracy offenses do not require that all objects of the conspiracy be accomplished. The Guidelines appropriately recognize this fact: while they normally afford a three-level decrease for non-specific offense conspiracies that were not on the verge of completion, they specifically exclude from this decrease any conspiracies that involve or promote ‘a federal crime of terrorism.‘” Id. (citing
Stewart completed her crime as Congress chose to define it, and the Sentencing Commission, in drafting the terrorism enhancement, elected not to mitigate its seriousness by rewarding a defendant whose crime did not ultimately result in death or serious injury with a reduced sentencing range. It is for this reason that lack of success cannot normally be a mitigating factor even though achievement of harm may be an aggravating factor. Permitting a district judge to require success in harming innocents before he will consider the terrorism component of a crime, particularly in a “heartland” case, is to permit that judge to disregard the fact that material support is itself a fully completed crime.
The majority states that “[f]ortuitous events are not categorically irrelevant to the determination of a just punishment nor is their consideration necessarily inappropriate.” Maj. Op. at 140. As a general matter, of course, I agree. In addition, I do not mean to suggest that there can never be a terrorism case in which absence of harm might be an appropriate consideration. Rather, I am suggesting that there is a very broad heartland of cases in which it should not be considered, and further that in this heartland, as here, it is error to use lack of harm as a primary reason for rejecting the terrorism component of a material support conviction. If, for example, an incompetent terrorist satisfies the enhancement by putting a small amount of arsenic into a reservoir for New York‘s drinking water with every intention of killing thousands, but without understanding that the quantity is insufficient to cause harm, the complete absence of any practical possibility that the plot could cause harm may well be relevant. But, that is far from the instant case, in which Stewart‘s actions were designed to embolden Rahman‘s followers to resume a murderous jihad against scores of innocent individuals in Egypt and elsewhere. In this case, it was unreasonable for the district court to place any weight on the fortuitous and attenuated events that saved the potential victims of Stewart‘s crime, much less to use it to wipe out the terrorism component of Stewart‘s crime in its
Judge Calabresi‘s attempt to defend the district court‘s analysis, by offering a hypothetical comparing the punishment of a terrorist who succeeds in causing harm with the punishment of one who does not misses the mark. See Op. of J. Calabresi at 157. The question at issue is not whether the amount of harm can never be a factor in sentencing. It is whether the terrorist who attempts to detonate a bomb in a public place, with the intent of killing many innocent Americans, should be able to escape the terrorism enhancement altogether simply because his plan happens to fail or be foiled by authorities. The an
Actual harm is a flawed metric when determining culpability in material support prosecutions. Precisely because of the devastating consequences at stake, it is, and should be, the focus of enforcement authorities to make every effort to prevent those consequences before they occur. When enforcement authorities are successful, it is to their great credit and their efforts should in no sense lessen the deterrent effect of punishment by conferring a sentencing benefit on those whose efforts were thwarted. Indeed, the House Report accompanying the Comprehensive Antiterrorism Act of 1995, which criminalized the material support of terrorism, explained that one of the legislation‘s primary goals was to “enhance [law enforcement‘s] capability of thwarting, frustrating, and preventing terrorist acts before they result in death and destruction.” H.R.Rep. No. 104-383, at 42 (1995) (emphasis added).
I fully recognize that district judges must develop ways of distinguishing whether and why one form of material support is more or less reprehensible than another, given the broad range of conduct that the material support statute criminalizes, see
Accordingly, the lack of injury here was not a fact of “critical relevance ... distinguish[ing]” Stewart‘s conduct “not only from that of all [her] codefendants, but from the vast majority of defendants convicted of conspiracy in federal court.” Gall, 128 S.Ct. at 600. Giving the absence of harm mitigating significance thus not only fails to recognize the extreme seriousness of such crimes even without achievement of actual harm, it undermines one of
My colleagues in the majority also suggest that because Stewart‘s terrorism
b. The Absence of an Enhancement for Perjury and Obstruction of Justice
After jettisoning the terrorism component of Stewart‘s crime in assessing the seriousness of Stewart‘s crime of conviction pursuant to
c. The Absence of an Enhancement for Abuse of Trust
The majority properly faults the district court for failing to “explain how and to what extent the sentence reflected the seriousness of the crimes of conviction in light of the fact that Stewart was ... a member of the bar when she committed them.” Maj. Op. at 148. The majority asks whether, in that light, “her punishment should have been greater than it was,” and then suggests the obvious answer. Maj. Op. at 149. I agree with the majority‘s criticism. As a “guardian[-] of the law,” a lawyer has a special obligation to “refrain from all illegal and morally reprehensible behavior.” New York Code of Professional Responsibility, Preamble, EC 1-5 (effective through March 31, 2009). However, the majority does not go far enough. Stewart was not just a lawyer who committed crimes. And she did not use her professional position simply to gain access to her client and to carry his jihadist messages by criminal means, conduct that, as noted in the previous section of this opinion reflects an extreme seriousness unreasonably overlooked by the district court. Stewart also committed her material support crimes by garnering the trust of the government, and then blatantly violating that trust — a fiduciary obligation that lies at the core of the SAMs system and that protects the right to counsel, even for convicted terrorists.
Under the Guidelines, the abuse-of-trust enhancement applies when a defendant has “abused a position of public or private trust in a manner that significantly facilitated the commission or concealment of the offense.”
The district court failed to explain why an enhancement for abuse of trust is not plainly appropriate in this case. The majority fails to fault the district court on this score because “the government did not specifically invoke section 3B1.3 in its sentencing memorandum.” Maj. Op. at 149 n. 37. But the government explicitly argued for consideration of Stewart‘s abuse of trust at the sentencing hearing:
[T]he United States Attorney‘s Office who was administering the SAMs trusted Ms. Stewart, put their faith in Ms. Stewart that she was doing what she promised to do. She considered that attorney affirmation that she signed an oath, a promise. Those are her words. And the government accepted that commitment and believed she would honor that commitment, but she violated that trust that was put in her by the United States Attorney‘s Office, by the Justice Department, repeatedly violated [it].
Sent‘g Tr. 95. As a result, the issue was properly before the district court.
The SAMs placed trust in Stewart because she was a member of the bar appointed under the Criminal Justice Act to represent Abdel Rahman, and she made explicit affirmations to the government specifically required to curb her client‘s ability to continue terrorist activities. Only because of the SAMs did Stewart have private access to, and “significantly less supervision” in her contacts with, Abdel Rahman,
Stewart‘s abuse of trust is particularly significant because it supports the arguments of those who say that our Article III courts, and the constitutional protections they afford, are not suited to terrorist trials. See generally, e.g., Michael B. Mukasey, Civilian Courts Are No Place To Try Terrorists, Wall St. J., Oct. 19, 2009, at A21 (discussing the difficulties of trying terrorists in Article III courts). The SAMs are designed to safeguard those rights, but they must necessarily be conditioned on attorneys respecting the trust placed in them, and cannot be sustained without that trust. Stewart‘s conduct thus raises concerns reaching even beyond her dealings with Abdel Rahman. Her criminal acts jeopardize, in a sensitive set of cases, the accused‘s right to his choice of independent counsel, which is the right upon which the vindication of all of the accused‘s other rights, and, in a larger sense, the right to a trial by an Article III court, depends.15
d. The Impact of These Errors on the Rest of the § 3553 Analysis
The district court‘s errors in assessing the seriousness of Stewart‘s crime impacted other parts of its
2. The District Court‘s Overwhelming Emphasis on Stewart‘s Age, Health, and Career
The district judge found that Stewart‘s “extraordinary personal characteristics ... argue[d] strongly in favor of a substantial downward variance,” Sent‘g Tr. 114, and used that finding to effectively set aside
Although we have no specific formula for balancing the
The imposition of a 28-month prison sentence “slighted,” Taylor, 487 U.S. at 337, the extreme criminality of Stewart‘s offense18 and disregarded the manifest purpose of the Guidelines regime: to avoid “unwarranted sentencing disparities,”
Similarly, Stewart‘s career of public service, as admirable as it seemed to the district court, can only go so far. “[I]t is usually not appropriate to excuse a defendant almost entirely from incarceration because [s]he performed acts that, though in society‘s interest, also were the defendant‘s responsibility to perform and stood to benefit the defendant personally and professionally.” United States v. D‘Amico, 496 F.3d 95, 107 (1st Cir.2007). The district court placed emphasis on Stewart‘s providing legal services to “the poor, the disadvantaged[,] and [the] unpopular over three decades,” Sent‘g Tr. 115, but as the district judge himself put it, “that credit does not extend to the knowing violation of the law,” Sent‘g Tr. 119. Yet given the severity of Stewart‘s conduct, this credit, which contributed heavily to a 332-month reduction from the recommended Guidelines range to a 28-month sentence, goes
Overemphasizing Stewart‘s career as a lawyer also fails to “promote respect for the law” or “afford adequate deterrence to criminal conduct” under any reasonable understanding of those mandatory sentencing considerations.
In sum, though we will rarely identify procedural error in the weight a sentencing judge assigns to relevant factors, this is one of those rare cases where the record of a defendant‘s personal characteristics simply cannot bear the weight necessary to support the challenged sentence. See Cavera, 550 F.3d at 192.
3. Overall Substantive Unreasonableness
I by no means assume that, upon resentencing, Stewart‘s sentence will remain at 28 months, but I would be remiss if I did not comment further on Stewart‘s current sentence. Unlike the majority, I do not believe that this court must hold off on the question of substantive unreasonableness until the procedural flaws it identifies are remedied. Maj. Op. at 139-40 n. 33. The “informed intuition of the appellate panel” has a place in appellate review. See United States v. Rigas, 583 F.3d 108, 122-23 (2d Cir.2009). And in the rare instance when a sentence imposed by a district court judge makes it plain that his judgment is in stark contrast with the appellate panel‘s intuition — as evidenced, for example, by the comparative sentences of codefendants — judicial efficiency counsels us to identify the substantive error along with procedural error at this time to minimize the need for subsequent appeals. This is not, as Judge Calabresi suggests, the issuing of an advisory opinion. Op. of J. Calabresi at 158-59. Rather it is providing a district court with the full basis for the appellate panel‘s remand prior to resentencing.20
Even apart from the aggravating circumstances of Stewart‘s obstruction of justice, her abuse of trust, and her false statements to the government, Stewart‘s conduct was closer to that of Sattar, whose 24-year sentence still represented a sharp reduction from his Guidelines sentence of life imprisonment, than that of Yousry. The district court found that Stewart and Sattar had engaged in conduct that warranted application of the terrorism enhancement and that was “calculated to influence or affect the conduct of the Egyptian government,” see Sent‘g Tr. 24, 28, & 108, but that student interpreter Yousry had not, Sent‘g Tr. 143-44.
Nonetheless, Stewart‘s sentence was much closer to that of Yousry, even though, as the district court noted, Yousry‘s “role in the offenses was subservient to the others involved,” Sent‘g Tr. 150. Stewart was given a sentence only eight months greater than that of Yousry, and in relative terms, she was treated far more leniently. Yousry‘s conduct, unlike that of Sattar and Stewart, was found by the district court to not warrant the terrorism enhancement; nor did Yousry falsely sign the SAMs or merit consideration for obstruction-of-justice and abuse of trust enhancements. As a result, Yousry‘s Guidelines range was 78 to 97 months, less than one-third of Stewart‘s Guidelines range of 360 months. Yousry‘s actual 20-month sentence represented just under one-quarter of the 88-month median of his Guidelines range, while Stewart‘s sentence was under one-tenth of her 360-month Guidelines range. Under the Guidelines, more than 260 months separated the sentences of Stewart and Yousry, yet the district court chose sentences that were only eight months apart. Like the majority, I am puzzled by this mismatch, particularly in light of “the need to avoid unwarranted sentence disparities.”
Because Stewart‘s sentence is so out of line with the extreme seriousness of her
Docket Nos. 09-2020-cv (L), 09-2027-cv (CON).
United States Court of Appeals, Second Circuit.
Heard: Sept. 18, 2009.
Decided: Dec. 23, 2009.
Corrected: Dec. 28, 2009.
Marc S. KIRSCHNER, as Trustee of the Refco Litigation Trust, Plaintiff-Appellant,
v.
KPMG LLP, Grant Thornton LLP, Mayer Brown LLP, Ingram Micro, Inc., Cim Ventures, Inc., William T. Pigott, Mayer Brown International LLP, PricewaterhouseCoopers LLP, Liberty Corner Capital Strategies, LLC, Banc of America Securities, LLC, Credit Suisse Securities (USA) LLC, and Deutsche Bank Securities, Inc., Defendants-Appellees.
Notes
The [district] court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for—
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—
...
(5) any pertinent policy statement—
(A) issued by the Sentencing Commission....
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
I by no means suggest that a district court may not err by attributing too much importance to results, whether on the upside or the downside. When reviewing a sentence for substantive reasonableness, appellate courts may question whether the presence or absence of actual harm can “bear the weight” attributed to it by a district court. Cavera, 550 F.3d at 191. And while an appellate court must never forget that its review is deferential, see Gall, 128 S.Ct. at 596, it may need to look carefully at a district court‘s reasons for giving weight to results, especially given the natural tendency to overvalue consequences. The majority opinion appropriately treats this substantive question as analytically distinct from whether a district court may, as a procedural matter, rely on lack of harm. See Maj. Op. at 139-40 n. 33. The majority opinion also quite properly leaves open, at this time, the question of whether the district court‘s actual use of lack of harm as grounds upon which to mitigate Stewart‘s sentence led to a result that was erroneous. Like the majority opinion, I do not yet express any view as to whether the district court in this case placed too much weight on the apparent lack of harm that resulted from Stewart‘s actions. See Part II infra. The terrorism enhancement provides:A statement to the nation, the old and the young: Fatwah mandating the killing of the Israelis everywhere.... I, as a Muslim scholar ... I appeal to my brothers, the scholars all over our Islamic world:... From our Islamic world, to portray their role, and issue a unanimous Fatwah calling on the Islamic nation to mandate the killing [of] the Jews wherever they are (UI) and wherever they are found.... [T]he Jihad today is the duty of the entire nation until Palestine and the Aqsa Mosque are liberated, and till the Jews are driven to their graves or out to the countries where they had come from.... The Muslim youth everywhere, especially in Palestine, Egypt, Syria, Lebanon and Jordan, as nations neighboring the Aqsa Mosque ... they have to fight the Jews by all possible means of Jihad, either by killing them as individuals or by targeting their interests and their advocates, as much as they can.
(a) If the offense is a felony that involved, or was intended to promote, a federal crime of terrorism, increase by 12 levels; but if the resulting offense level is less than level 32, increase to level 32.
(b) In each such case, the defendant‘s criminal history category from Chapter Four (Criminal History and Criminal Livelihood) shall be Category VI.
The word has historically been used as a positive commandment, however, with respect to the ethical obligations of members of the bar. Until recently, for example, Canon 7 of the New York Lawyer‘s Code of Professional Responsibility provided: “A Lawyer Should Represent a Client Zealously Within the Bounds of the Law.” It is in that sense that we understand Stewart to use the term here.
See Letter in Support of Lynne Stewart from Abdeen M. Jabara to Judge Koeltl (June 28, 2006), and Letter in Support of Lynne Stewart from Ramsey Clark to Judge Koeltl (Oct. 2, 2006), available in J.App. at 2211, 2334. Because the district court‘s flawed reliance on the absence of harm in this case also infected Sattar‘s and Yousry‘s sentences, I would vacate their sentences and remand for resentencing as to them as well.No person may be prosecuted under [section 2339B] in connection with the term “personnel” unless that person has knowingly provided, attempted to provide, or conspired to provide a foreign terrorist organization with 1 or more individuals (who may be or include himself) to work under that terrorist organization‘s direction or control or to organize, manage, supervise, or otherwise direct the operation of that organization. Individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization‘s direction and control.
- the nature and circumstances of the offense and the history and characteristics of the defendant;
- the need for the sentence imposed—
- to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
- to afford adequate deterrence to criminal conduct;
- to protect the public from further crimes of the defendant; and
- to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
- the kinds of sentences available;
- the kinds of sentence and the sentencing range established [and recommended by the Sentencing Guidelines];
- any pertinent policy statement ... issued by the Sentencing Commission ...;
- the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
- the need to provide restitution to any victims of the offense.