590 F.3d 93 (2nd Cir. 2009), 06-5015-cr (L), United States v. Stewart

Docket Nº:06-5015-cr (L), 06-5031-cr (con), 06-5093-cr (con), 06-5131-cr (con), 06-5135-cr (con), 06-5143-cr (con).
Citation:590 F.3d 93
Opinion Judge:SACK, Circuit Judge:
Party Name:UNITED STATES of America, Appellee-Cross-Appellant, v. Lynne STEWART, Mohammed Yousry, Ahmed Abdel Sattar, Defendants-Appellants-Cross-Appellees.
Attorney: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 Yo...
Judge Panel: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. CALABRESI, Circuit Judge, concurring:
Case Date:November 17, 2009
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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590 F.3d 93 (2nd Cir. 2009)

UNITED STATES of America, Appellee-Cross-Appellant,

v.

Lynne STEWART, Mohammed Yousry, Ahmed Abdel Sattar, Defendants-Appellants-Cross-Appellees.

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.

November 17, 2009

Argued: Jan. 29, 2008.

As Amended: Dec. 23, 2009.[*]

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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 conspiring

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to defraud the United States, in violation of 18 U.S.C. § 371, by violating SAMs imposed upon Abdel Rahman. Contrary to the defendants' arguments, the evidence is sufficient to sustain these convictions. Moreover, we reject both Stewart's argument that, as a lawyer, she was not bound by the SAMs, and her belated argument collaterally attacking their constitutionality.

We affirm as to Sattar's conviction of conspiring to murder persons in a foreign country in violation of 18 U.S.C. § 956, and his conviction of soliciting persons to commit crimes of violence-viz., murder and conspiracy to commit murder-in violation of 18 U.S.C. § 373. We conclude that the evidence is sufficient to sustain these convictions, especially in light of testimony establishing that Sattar attempted to undermine a unilateral cease-fire by an Egyptian terrorist organization and to draft a fatwa calling for, inter alia, the killing of " Jews and Crusaders."

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 18 U.S.C. § 2339A and 18 U.S.C. § 2, and of conspiring to provide and conceal such support in violation of 18 U.S.C. § 371. We conclude that the charges were valid-that 18 U.S.C. § 2339A is neither unconstitutionally vague as applied nor a " logical absurdity," as Stewart asserts-and that the evidence was sufficient to sustain the convictions. We also reject Stewart's claims that her purported attempt to serve as a " zealous advocate" for her client provides her with immunity from the convictions.

Finally, we affirm Stewart's convictions for knowingly and willfully making false statements in violation of 18 U.S.C. § 1001 when she affirmed that she intended to, and would, abide by the SAMs. In light of her repeated and flagrant violation of the SAMs, a reasonable factfinder could conclude that Stewart's representations that she intended to and would abide by the SAMs were knowingly false when made.

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,

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in accordance with the Classified Information Procedures Act (" CIPA" ), of Stewart's motion to compel disclosure of information related to potential surveillance conducted by the National Security Agency.

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 18 U.S.C. § 3553(a). We nonetheless remand their cases to the district court to allow it to reconsider their sentences should it choose to do so in light of the resentencing of Stewart.

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).

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