Second Circuit Stands on its Head, Affirming Stewart

By   /   April 15, 2013 


Second Circuit Stands on its Head, Affirming Stewart

United States v. Sattar1

(decided June 28, 2012)

Kina Grbic


Lynne Stewart, graduate of Rutgers School of Law, once had a prominent career as a civil rights attorney.2  She participated in many high-profile cases, representing members of the mafia3 and the Black Liberation Army,4 but most recently found herself on trial for federal crimes.5  Stewart’s conviction stemmed from her involvement with, perhaps her most notorious client, Sheikh Omar Ahmad Ali Abdel Rahman, after he was convicted in connection with the 1993 World Trade Center bombing, among other crimes,6 and his petition for certiorari was denied by the Supreme Court in 2000.7  Despite the finality of his conviction, the United States Attorney’s Office permitted Stewart to continue her meetings with Abdel Rahman, not without restriction, where she briefly succeeded in aiding the transmission of messages between Abdel Rahman and her translator, Mohammed Yousry, in violation of those restrictions.8

In 2006, Stewart was sentenced by Judge Koeltl in the Southern District of New York to twenty-eight months in prison for conspiracy to defraud the United States, conspiracy to provide and to conceal the provision of material support to a conspiracy to kill and kidnap persons in a foreign country, providing and concealing the provision of material support to a conspiracy to kill and kidnap persons in a foreign country, and making false statements to government employees.9   Following the sentencing, Stewart famously remarked, “Any regrets?  I don’t think anybody would say that going to jail for two years is something you look forward to, but as my clients have said to me, ‘I can do that standing on my head.’ ”10

Stewart appealed the conviction, and the government cross-appealed the low sentence.11  In 2009, the Second Circuit remanded for resentencing and instructed the Southern District of New York to determine whether sentencing enhancements under the United States Sentencing Guidelines were warranted.12  In 2010, the district court found that Stewart engaged in conduct that triggered the obstruction-of-justice enhancement, the abuse-of-trust enhancement, as well as the terrorism enhancement.13  The court also determined that a higher sentence was justified on the basis of statements Stewart had publicly made, each showing she lacked remorse for her crimes.14  The first statement was Stewart’s “I can do that standing on my head” comment, the other, her response to a television broadcast wherein she replied in part, “I would do it again.  I might handle it a little differently, but I would do it again.”15  Though Stewart’s sentence had a guideline of 360 months, the district court resentenced her to one-third the time, 120 months.16

The Second Circuit unanimously affirmed the district court’s decision.17  Apart from determining that the sentence increase from twenty-eight months to 120 was appropriate, the Circuit primarily held that the district court did not violate Stewart’s First Amendment right to freedom of speech when it used the two public statements described in the above at sentencing.18 

In a lengthy opinion, the court relied on three principles, the first from United States v. Perez-Frias,19 a decision it reached the year prior, which established that “a district court is required to sentence a convicted defendant based in part on his or her ‘history and personal characteristics.’ ”20  The second principle cited by the court was that a sentencing court may only assess a person’s history and personal characteristics through what the person actually said.21  Finally, the third principle, which contradicts the first two, is the First Amendment’s right to freedom of speech.22

In 1983, the Court of Appeals for the D.C. Circuit distinguished between using a statement for illustrating a defendant’s belief and using the same statement for the purpose of sentencing.23  Just six years ago, the Second Circuit similarly established that political beliefs and other protected speech might be introduced at sentencing so long as the speech is relevant to the sentencing.24  The case was United States v. Kane25 and dealt with a man convicted for defrauding federal housing agencies.26  The Second Circuit used certain writings authored by the defendant, which explained tactics for defrauding housing agencies as evidence at sentencing, because it “related directly” to his sentencing and “may indicate the increased likelihood of recidivism or a lack of recognition of the gravity of the wrong . . . .”27  Similarly, the Eighth Circuit, in United States v. Bangert,28 determined that although a person’s political belief is protected First Amendment speech, it might be considered at sentencing when it is based on the “lack of truthfulness and lack of remorse.”29

It was with these decisions in mind that the Second Circuit in Sattar determined that the Southern District of New York did not abridge Stewart’s First Amendment right to speech when it used two of her public statements as a basis for increasing her sentence.30  The court expressly found that Stewart was not punished for unlawful speech or for what she said, but rather that her statements were relevant to determining her appropriate sentence.31  Though Stewart argued that she was “punished for her political beliefs,” as the court pointed out, “[t]he most obvious—and fatal—shortcoming in Stewart’s argument . . . is that there is not a hint in the record of any fact to support [this] assertion . . . .”32  Rejecting the argument that the district court judge changed his political beliefs from the time when he sentenced Stewart to twenty-eight months, and four years later when he resentenced her to 120 months, the Second Circuit found it more plausible that the court, on remand, took Stewart’s public statements not in the political sense, but rather to indicate that her two public statements showed that she lacked remorse for the crimes committed.33  The analysis would be only an extension to Bangert, cited to in the above.

In the end, the Second Circuit’s decision is hardly an unsurprising outcome, considering that Stewart also earned a higher sentence as a result of perjury and other conduct that warranted three separate Sentencing Guidelines enhancements.34  As the court explained:

In Stewart I, we remanded with the explicit direction that the district court would apply the terrorism enhancement, determine whether the abuse-of-trust and obstruction-of-justice enhancements applied, and “consider the overall question whether the sentence to be given is appropriate in view of the magnitude of the offense.”  The district court was permitted to consider Stewart’s lack of remorse and view of the seriousness of her previous sentence in arriving at an appropriate new sentence pursuant to section 3553(a), as we have explained, but the increase in her sentence was based on consideration of myriad other factors not properly or fully addressed at her previous sentencing.  Of the 42 pages of transcript containing the district court’s resentencing and its statements of the reasons therefor, barely more than a page is devoted to a discussion of the speech at issue here and its consequences for sentencing purposes.35

Ultimately, Stewart’s actions alone might have justified her sentencing increase so that the Second Circuit’s affirmation of her 120-month sentence should hardly come as a surprise to anyone.  Much like Stewart, the Second Circuit could reach that decision standing on its head.



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  1. United States v. Sattar, No. 10-3185, 2012 WL 2434760 (2d Cir. Jun. 28, 2012).
  2. Brief and Special Appendix for Defendant-Appellant-Cross-Appellee Lynne Stewart at 9 United States v. Stewart, 590 F.3d 93 (2d Cir. 2009) (No. 06-5015-CR(L)).
  3. See e.g., Alan Feuer, Gravano and Son Plead Guilty To Running Ecstasy Drug Ring, N.Y. Times, May 26, 2001.
  4. United States v. Ferguson, 758 F.2d 843, 846 (2d Cir. 1985) (representing Odinga).
  5. Indictment, United States of America v. Sattar (S.D.N.Y. 2002) (No. 02Crim. 395), 2002 WL 32631889.
  6. United States v. Stewart, 590 F.3d 93, 101 (2d Cir. 2009) (“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.” (citation omitted)).
  7. Petition for Writ of Certiorari, Rahman v. United States, 528 U.S. 1094 (2000) (No. 99-7080).
  8. Stewart, 590 F.3d at 108.
  9. Sattar, 2012 WL 2434760, at *2 (citation omitted).
  10. Id. at *4 (citation omitted).
  11. Stewart, 590 F.3d at 98.
  12. Id. at 151.
  13. Sattar, 2012 WL 2434760, at *2-3  (citing Transcript of Re-Sentencing Hearing at 41-42, 45-55, United States v. Stewart, No. 02 CR 395(JGK) (S.D.N.Y. 2010)).
  14. Id. at *8.
  15. Id. at *3-*4 (emphasis omitted) (citation omitted).
  16. Id. *3 (citing Transcript of Re-Sentencing Hearing at 73, Stewart, No. 02 CR 395(JGK) (S.D.N.Y. 2010)).
  17. Id.
  18. Sattar, 2012 WL 2434760, at *3.
  19. United States v. Perez-Frias, 636 F.3d 39 (2d Cir. 2011).
  20. Sattar, 2012 WL 2434760, at *5 (citing Perez-Frias, 636 F.3d at 43).
  21. Id.
  22. Id. at *5; see also, United States v. Lemon, 723 F.2d 922, 937-38 (D.C. Cir. 1983) (“[A] court may not punish an individual by imposing a heavier sentence for the exercise of first amendment rights . . . . A sentence based to any degree on activity or beliefs protected by the first amendment is constitutionally invalid.” (citation omitted)).
  23. Id. at *7 (discussing Lemon).
  24. United States v. Kane, 452 F.3d 140, 142 (2d Cir. 2006) (citing Dawson v. Delaware, 503 U.S. 159, 165 (1992)).
  25. Kane, 452 F.3d 140.
  26. Id. at 141.
  27. Id. at 143 (citing United States v. Tampico, 297 F.3d 396, 403 (5th Cir. 2002)).
  28. United States v. Bangert, 645 F.2d 1297 (8th Cir. 1981).
  29. Id. at 1308.
  30. Sattar, 2012 WL 2434760, at *6.
  31. See id. at *5 (“She was punished, in light of that assessment, not for unlawful speech, but for her crimes of conviction: conspiracy to defraud the United States; conspiracy to provide and to conceal the provision of material support to a conspiracy to kill and kidnap persons in a foreign country; providing and concealing the provision of material support to a conspiracy to kill and kidnap persons in a foreign country; and making false statements to agencies of the United States.”).
  32. Id. at *8.
  33. Id. at *8.
  34. Id. at *3.
  35. Sattar, 2012 WL 2434760, at *8 (citation omitted).