Lynne Stewart gets 28 months, remains free pending appeal
From the New York Law Journal, Oct. 17:
Veteran defense attorney Lynne Stewart cried tears of relief yesterday as a federal judge ordered her to serve a dramatically lower sentence than prosecutors had requested for her conviction on providing material support to a terrorist conspiracy.
Southern District Judge John Koeltl gave Ms. Stewart a sentence of only 28 months. The government had asked for 30 years behind bars.
Weighing in Ms. Stewart's favor, the judge said, were her years of service to the poor, the disadvantaged and the unpopular; her battle with cancer and the fact that her actions, though reprehensible, did not result in violence.
Ms. Stewart was also allowed to remain free on bail pending her appeal for convictions for providing and concealing material support, conspiring to do so, making false statements and defrauding the government.
The result produced the bizarre spectacle of a victory celebration following a criminal sentencing, with Ms. Stewart holding flowers and chanting "yes" with supporters outside the Daniel Patrick Moynihan Courthouse.
The rulings came after emotional pleas by defense lawyers Elizabeth Fink, Joshua Dratel and Jill Shellow-Levine, who argued that the federal sentencing guidelines' call for a lengthy prison term did not fit the circumstances of the crimes Ms. Stewart actually committed.
Indeed, Judge Koeltl, before he announced he was giving Ms. Stewart a "non-guidelines" sentence, pronounced a guidelines enhancement for a crime of terrorism, one that would have increased her prison term significantly, "dramatically unreasonable in the case of Ms. Stewart."
The judge made the same finding for co-defendant Ahmed Abdel Sattar, who was convicted of the more serious crime of conspiracy to kill or kidnap people in another country, as he gave him a 24-year prison term. The government had sought life behind bars for Mr. Sattar.
Yesterday, U.S. Attorney Michael Garcia released a statement saying he was "disappointed" in the sentences and was weighing an appeal.
The sentences came 4 1/2 years after Attorney General John Ashcroft announced the indictment of Ms. Stewart, Mr. Sattar and interpreter Mohamed Yousry in a plot to pass messages to and from the Egyptian-based Islamic Group to imprisoned Sheik Omar Abdel-Rahman. Mr. Yousry was sentenced yesterday to 20 months in prison.
Sheik Abdel-Rahman, considered the spiritual leader of Islamic Group, was serving a life sentence for a terror plot against the United States. He had been placed under Special Administrative Measures (SAMs) by the Bureau of Prisons to prevent him from communicating with his followers in the group.
Ms. Stewart was convicted of defrauding the government by signing attorney affirmations promising to abide by the SAMs and of providing material support along with Mr. Yousry by helping the sheik send and receive messages in prison.
Her most "potentially lethal" action, Judge Koeltl said, was in June 2000, when she read a press release to a reporter indicating that the sheik was withdrawing his support for a "cease-fire" or cessation of attacks against the Egyptian government.
Mr. Sattar served as a paralegal for Ms. Stewart and other defense lawyers at the sheik's 1995 trial for seditious conspiracy against the United States in connection with a plot to bomb New York City landmarks.
At this trial, Mr. Sattar was accused by the government of being the "communications hub" for Islamic Group and the spearhead of efforts to have the sheik freed from prison.
Mr. Sattar was recorded on government surveillance tapes as plotting with a high-ranking militant in Islamic Group named Taha to resume the group's campaign against the Egyptian government -- a campaign that, before the cease-fire became widely accepted by the membership, included the 1997 massacre of 62 people at an archeological site in Luxor, Egypt.
He also admitted that he drafted a religious edict, or fatwa, in Sheik Abdel-Rahman's name calling for the murder of Jews around the world.
Ms. Stewart and Mr. Yousry were convicted of assisting this effort by acting as a conduit to the sheik, transporting messages from Taha to him. Ms. Stewart was caught on tape making, and bragging about making, covering noises to distract corrections officers while Mr. Yousry and the sheik communicated.
Prosecutors Andrew Dember and Robin Baker objected to the judge's decision to give the trio non-guidelines sentences.
Instead of giving a guidelines sentence to Ms. Stewart and her co-defendants and downwardly departing within the framework of the guidelines, Judge Koeltl adopted what he called a "downward variance."
The judge seemed to vindicate the contention of Ms. Stewart's attorneys that the indictment against her, and the possibility of the rest of her life in prison, was wholly disproportionate to her actions.
But Judge Koeltl, while commending Ms. Stewart for a life of public service, also had some harsh words for the 67-year-old grandmother, saying she "abused her position as a lawyer to gain access to Sheik Abdel-Rahman and used that access" to smuggle messages to terrorists.
In the end, the judge said the impending loss of her license to practice law, and the fact that she would therefore no longer be in a position to repeat her crime, was a factor in his decision.
So too was Ms. Stewart's treatment for breast cancer.
Ms. Fink seemed to test the judge's patience by arguing that Ms. Stewart would receive poor medical treatment in prison and by claiming her client would be "tortured" behind bars because she was convicted of a terrorist offense.
The lower-than-expected sentence given to Mr. Sattar set the stage for Ms. Stewart's lawyers to confidently argue she should receive no prison time at all.
It also gave Mr. Dember warning that he was fighting an uphill battle in arguing for a longer sentence.
Mr. Dember reminded the court that Ms. Stewart "repeatedly lied to and deceived the government" -- first when she smuggled in a message from Taha urging the sheik to withdraw his support for the cease-fire on terror attacks in 1999, then again when she signed an affirmation in 2000 promising to comply with the SAMs, and then still again after she issued the press release and "was confronted, and required to sign a new affirmation."
Mr. Dember aggressively rejected Ms. Stewart's claim that she was merely advocating for her client, saying that "smuggling terrorist messages" into and out of prison "has nothing to do with legitimate legal representation."
'Serious Criminal Conduct'
This was not merely "a violation of some administrative rule" but "serious criminal conduct," he said, and Ms. Stewart knew it because she spoke on the phone to Mr. Yousry after the press release was issued, and before a "clarifying" press release on the sheik's position was to be issued and said "she didn't do this lightly" and was "risking her whole career."
"She didn't step over a line that was fine, or thin, or blurry," Mr. Dember said. "She stepped over a line that was clear."
Mr. Dratel answered by arguing that the government "robs this case of context."
Mr. Dember ridiculed the defense claim that the prosecution of Ms. Stewart was meant to send a message to lawyers willing to defend the rights of those accused of, or convicted of, terrorist plots.
The prosecution, he said, was brought "not because she represents unpopular clients nor to deter defense counsel from involvement in terrorist-related cases -- or to chill them," he said. "And this had nothing whatsoever to do with 9/11."
He reminded the judge that terrorism prosecutor Patrick Fitzgerald had wanted to launch a criminal investigation into Ms. Stewart's actions, but was told to "stand down" because there was an ongoing "intelligence investigation under way."
But Mr. Dratel insisted that the government wanted to "chill" aggressive defense tactics in terror cases and make an example of Ms. Stewart.
Among the some 400 letters sent to the judge in support of Ms. Stewart was one that came from Jo Ann Harris, former assistant attorney general in charge of the Justice Department's Criminal Division and now in private practice. Ms. Harris' letter accused the government of "unwarranted overkill" in charging Ms. Stewart.
It is not every day that a criminal defendant celebrates a prison sentence, but Ms. Stewart walked out of the courthouse acting like a champ.
She had entered 500 Pearl Street somber and appearing shaken -- even after she was serenaded by dozens of supporters who had been denied admission to the overcrowded 12th floor courtroom. Some in the crowd sang the "Glory Hallelujah" refrain from "The Battle Hymn of the Republic" while others chanted, "Set Lynne free."
But as Judge Koeltl began to hint at a low sentence, Ms. Stewart and members of her legal team began to perk up. When he finally announced his decision, there were broad smiles and, once a break was announced, Ms. Stewart was enveloped in hugs from her family, friends and attorneys.
Later, outside the courthouse, a crowd of about 150 supporters chanted, "The people, united, will never be defeated." Ms. Stewart was handed a bouquet of red roses and told the gathering, "I love you."
Ms. Stewart quoted one of her former clients on the old saw of receiving a light sentence, saying she could serve the 28 months "standing" on her "head."
She then checked herself and said she did not want to be seen as being "in the face" of the government and was humbled by the experience.
Her relief was shared by lawyers David Stern and David Ruhnke for Mr. Yousry.
Attorneys Kenneth Paul and Barry Fallick, representing Mr. Sattar, were more subdued, but nonetheless gratified the judge did not embrace the recommendations of the government and the U.S. Probation Department.
"We were expecting life," Mr. Paul said.
See our last post on Lynne Stewart.