United States v. Sattar (Stewart Yousry)

Opinion

06-5015-cr (L)

United States v. Sattar (Stewart; Yousry)

1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2007 4 (Argued: January 29, 2008 Decided: November 17, 2009)*

5 Docket Nos. 06-5015-cr (L), 06-5031-cr (con), 06-5093-cr (con), 6 06-5131-cr (con), 06-5135-cr (con), 06-5143-cr (con)

7 ------------------------------------- 8 UNITED STATES OF AMERICA, 9 Appellee-Cross-Appellant, 10 - v. - 11 LYNNE STEWART, MOHAMMED YOUSRY, AHMED ABDEL SATTAR, 12 Defendants-Appellants-Cross-Appellees. 13 -------------------------------------

14 Before: WALKER, CALABRESI, and SACK, Circuit Judges. 15 16 Appeal by the defendants from judgments of conviction

17 of the United States District Court for the Southern District of 18 New York (John G. Koeltl, Judge) on charges arising from their 19 unauthorized contacts with and behavior relating to Sheikh Omar 20 Ahmad Ali Abdel Rahman, a high-security federal prisoner. Abdel 21 Rahman, serving a life sentence for seditious conspiracy, 22 solicitation of murder, solicitation of an attack on American 23 military installations, conspiracy to murder, and conspiracy to 24 bomb, is subject to "Special Administrative Measures" designed to

*

The panel withheld consideration of this appeal pending the Court's en banc decision in United States v. Cavera, 550 F.3d 180 (2d Cir. Dec. 4 2008).

1 restrict his communications with terrorist organizations and 2 their members. The defendants were convicted principally with 3 respect to their violations of those measures by which they had 4 agreed to abide. The government cross appeals, challenging the 5 reasonableness of the defendants' sentences. We affirm the 6 judgments except with respect to the sentencing of defendant 7 Lynne Stewart, and remand all three cases to the district court. 8 The district court is directed to revoke Stewart's and Yousry's 9 bail pending appeal and to order them to surrender to the United 10 States Marshal to begin serving their sentences forthwith as 11 directed by the district court. 12 Judge Calabresi concurs, and also files a separate 13 concurring opinion. Judge Walker concurs in part and dissents in 14 part in a separate opinion.

15 JOSHUA L. DRATEL (Meredith S. Heller, 16 Erik B. Levin, David B. Rankin, of 17 counsel), Law Offices of Joshua L. 18 Dratel, P.C., New York, NY, for 19 Defendant-Appellant-Cross-Appellee Lynne 20 Stewart.

21 ROBERT A. SOLOWAY (David Stern, David A. 22 Ruhnke, of counsel) Rothman Schneider 23 Soloway & Stern, LLP, New York, NY, and 24 Ruhnke & Barrett, Montclair, NJ, for 25 Defendant-Appellant-Cross-Appellee 26 Mohammed Yousry.

27 BARRY M. FALLICK (Jillian S. Harrington, 28 Kenneth A. Paul, of counsel) Rochman 29 Platzer Fallick Sternheim Luca & Pearl, 30 LLP, New York, NY, for Defendant- 31 Appellant-Cross-Appellee Ahmed Abdel 32 Sattar.

33 ANTHONY S. BARKOW, Assistant United 34 States Attorney (Michael J. Garcia,

3

1 United States Attorney for the Southern 2 District of New York, Andrew S. Dember, 3 Michael D. Maimin, Diane Gujarati, 4 Katherine Polk Failla, Celeste L. 5 Koeleveld, Assistant United States 6 Attorneys, of counsel), New York, NY, 7 for Appellee-Cross-Appellant.

8 SACK, Circuit Judge: 9 Defendants Lynne Stewart, Mohammed Yousry, and Ahmed 10 Abdel Sattar appeal from judgments of conviction of the United 11 States District Court for the Southern District of New York 12 (John G. Koeltl, Judge) for various crimes arising from their 13 contacts with and behavior relating to government restrictions on 14 communications and other contacts with Sheikh Omar Ahmad Ali 15 Abdel Rahman. Rahman is serving a life sentence in a maximum 16 security prison for terrorism-related crimes of seditious 17 conspiracy, solicitation of murder, solicitation of an attack on 18 American military installations, conspiracy to murder, and a 19 conspiracy to bomb. He is subject to "Special Administrative 20 Measures" ("SAMs") restricting his ability to communicate with 21 persons outside of the prison in which he is incarcerated so as 22 to prevent him from continuing to lead terrorist organizations 23 and their members. The government cross-appeals from the 24 defendants' sentences. 25 We would be remiss if we did not, at the outset, 26 commend the district court for its thoroughness, thoughtfulness, 27 and effectiveness in the conduct of these unusually lengthy, 28 difficult, and sensitive proceedings. Much of what follows 29 simply reports what it did and tracks what it said.

4

1 We affirm the judgments of conviction. We also affirm 2 the sentences of Yousry and Sattar. We remand the case, however, 3 with respect to the sentence of Stewart, and also with respect to 4 the sentences of Yousry and Sattar in light of the resentencing 5 of Stewart. 6 In particular, we affirm the judgments as to each 7 defendant's conviction of conspiring to defraud the United 8 States, in violation of 18 U.S.C. § 371, by violating SAMs 9 imposed upon Abdel Rahman. Contrary to the defendants' 10 arguments, the evidence is sufficient to sustain these 11 convictions. Moreover, we reject both Stewart's argument that, 12 as a lawyer, she was not bound by the SAMs, and her belated 13 argument collaterally attacking their constitutionality. 14 We affirm as to Sattar's conviction of conspiring to 15 murder persons in a foreign country in violation of 18 U.S.C. 16 § 956, and his conviction of soliciting persons to commit crimes 17 of violence -- viz., murder and conspiracy to commit murder -- in 18 violation of 18 U.S.C. § 373. We conclude that the evidence is 19 sufficient to sustain these convictions, especially in light of 20 testimony establishing that Sattar attempted to undermine a 21 unilateral cease-fire by an Egyptian terrorist organization and 22 to draft a fatwa calling for, inter alia, the killing of "Jews 23 and Crusaders." 24 We affirm as to Stewart's and Yousry's convictions of 25 providing and concealing material support to the conspiracy to 26 murder persons in a foreign country in violation of 18 U.S.C.

5

1 § 2339A and 18 U.S.C. § 2, and of conspiring to provide and 2 conceal such support in violation of 18 U.S.C. § 371. We 3 conclude that the charges were valid -- that 18 U.S.C. § 2339A is 4 neither unconstitutionally vague as applied nor a "logical 5 absurdity," as Stewart asserts -- and that the evidence was 6 sufficient to sustain the convictions. We also reject Stewart's 7 claims that her purported attempt to serve as a "zealous 8 advocate" for her client provides her with immunity from the 9 convictions. 10 Finally, we affirm Stewart's convictions for knowingly 11 and willfully making false statements in violation of 18 U.S.C. 12 § 1001 when she affirmed that she intended to, and would, abide 13 by the SAMs. In light of her repeated and flagrant violation of 14 the SAMs, a reasonable factfinder could conclude that Stewart's 15 representations that she intended to and would abide by the SAMs 16 were knowingly false when made. 17 We reject the remaining challenges to the convictions. 18 We affirm the district court's rejection of Sattar's vindictive 19 prosecution claim because there is insufficient evidence to 20 support a finding that the government's pre-trial decision to add 21 new charges against Sattar amounted to an effort to punish him 22 for exercising his constitutional rights. And, because Stewart's 23 conduct was materially different from, and more serious than, the 24 conduct of other lawyers representing Abdel Rahman who may also 25 have violated the SAMs, we affirm the district court's rejection 26 of Stewart's claim that she was selectively prosecuted on account

6

1 of her gender or political beliefs. We also conclude that the 2 district court did not abuse its discretion in declining to sever 3 the trial of Stewart and Yousry from that of Sattar in light of 4 the general preference for joint trials, the specific charges at 5 issue here, and the district court's curative instructions. Nor 6 did the district court abuse its discretion by empaneling an 7 anonymous jury in light of the particular allegations of criminal 8 wrongdoing at issue, involving the corruption of the judicial 9 process, and the widespread publicity about the case. We find no 10 fault with the district court's resolution of allegations of 11 juror impropriety. We also agree with the district court's 12 treatment of confidential information, including its denial of 13 Stewart's motion to suppress evidence obtained pursuant to the 14 Foreign Intelligence Surveillance Act ("FISA"), its ex parte, in 15 camera examination of FISA wiretap applications, and its 16 rejection of Stewart's more general challenges to the 17 constitutionality of FISA. Finally, we find no fault with the 18 district court's treatment, in accordance with the Classified 19 Information Procedures Act ("CIPA"), of Stewart's motion to 20 compel disclosure of information related to potential 21 surveillance conducted by the National Security Agency. 22 We therefore affirm the convictions in their entirety. 23 We also affirm the sentences of Sattar and Yousry. We 24 conclude that the district court committed neither procedural 25 error in calculating the applicable Guidelines ranges, nor 26 substantive error in varying from those ranges pursuant to its

7

1 consideration of the factors set forth in 18 U.S.C. § 3553(a). 2 We nonetheless remand their cases to the district court to allow 3 it to reconsider their sentences should it choose to do so in 4 light of the resentencing of Stewart. 5 We cannot affirm Stewart's sentence on the basis of the 6 record before us. Because the district court declined to find 7 whether Stewart committed perjury at trial, we cannot conclude 8 that the mitigating factors found to support her sentence can 9 reasonably bear the weight assigned to them. This is so 10 particularly in light of the seriousness of her criminal conduct, 11 her responsibilities as a member of the bar, and her role as 12 counsel for Abdel Rahman. We therefore remand the cause to the 13 district court for further consideration of her sentence, in 14 light of, among other things, the charges of perjury against her 15 and of any other matter it deems necessary or advisable, and 16 direct the court to revoke Stewart's and Yousry's bail pending 17 appeal and to order them to surrender to the United States 18 Marshal to begin serving their sentences forthwith. 19 BACKGROUND 20 The transcript of the trials in the cases on appeal 21 runs in excess of thirteen thousand pages. The district court 22 issued nine opinions and a wide variety of orders addressing 23 issues presented during the course of the proceedings. See 24 principally, United States v. Sattar, 272 F. Supp. 2d 348 25 (S.D.N.Y. 2003) ("Sattar I"); United States v. Sattar, No. 02 26 Cr. 395 (JGK), 2003 WL 22137012, 2003 U.S. Dist. LEXIS 16164

8

1 (S.D.N.Y. Sept. 15, 2003) ("Sattar II"); United States v. Sattar, 2 314 F. Supp. 2d 279 (S.D.N.Y. 2004) ("Sattar III"); United States 3 v. Sattar, 395 F. Supp. 2d 66 (S.D.N.Y. 2005) ("Sattar IV"); 4 United States v. Sattar, 395 F. Supp. 2d 79 (S.D.N.Y. 2005) 5 ("Sattar V").1 The filings in this Court reflect the massiveness 6 of the record.2 We therefore describe the proceedings in the 7 district court and the relevant facts only in the detail we think 8 necessary to explain our decision. In reviewing the conviction, 9 we set forth the facts, as we must, in the light most favorable 10 to the government. See United States v. Aleskerova, 300 F.3d 11 286, 292 (2d Cir. 2002). 12 The SAMs 13 In October 1995, Sheikh Omar Ahmad Ali Abdel Rahman was 14 convicted of a variety of terrorism-related crimes in the United 15 States District Court for the Southern District of New York. 16 According to the government's evidence at his trial,

1

See also United States v. Sattar, No. S1 02 Cr. 395 (JGK), 2006 WL 3165791, 2006 U.S. Dist. LEXIS 79328 (S.D.N.Y.

Oct. 27, 2006); United States v. Sattar, No. 02 Cr. 395 (JGK), 2003 WL 22510398, 2003 U.S. Dist. LEXIS 19770 (S.D.N.Y. Nov. 5, 2003); United States v. Sattar, No. 02 Cr. 395 (JGK), 2003 WL 22510435, 2003 U.S. Dist. LEXIS 19772 (S.D.N.Y. Nov. 5, 2003);

United States v. Sattar, No. 02 Cr. 395 (JGK), 2002 WL 1836755, 2002 U.S. Dist. LEXIS 14798 (S.D.N.Y. Aug. 12, 2002).

2

Excluding fifty pages of tables of contents and authorities, the government's principal brief alone approaches within several thousand words of the length of Charles Dickens's A Tale of Two Cities, see http://www.gutenberg.org/files/98/98.txt (last visited April 4, 2009), and is about as long as the recent popular novel "Atonement," see http://store.scriptbuddy.com/ products/Atonement/78622/ (last visited April 4, 2009).

9

1 Abdel Rahman, a blind Islamic scholar and 2 cleric, was the leader of [a] seditious 3 conspiracy, the purpose of which was "jihad," 4 in the sense of a struggle against the 5 enemies of Islam. Indicative of this 6 purpose, in a speech to his followers Abdel 7 Rahman instructed that they were to "do jihad 8 with the sword, with the cannon, with the 9 grenades, with the missile . . . against 10 God's enemies." Abdel Rahman's role in the 11 conspiracy was generally limited to overall 12 supervision and direction of the membership, 13 as he made efforts to remain a level above 14 the details of individual operations. 15 However, as a cleric and the group's leader, 16 Abdel Rahman was entitled to dispense fatwas, 17 religious opinions on the holiness of an act, 18 to members of the group sanctioning proposed 19 courses of conduct and advising them whether 20 the acts would be in furtherance of jihad.[3] 21 United States v. Rahman, 189 F.3d 88, 104 (2d Cir. 1999) (per

22 curiam), cert. denied, 528 U.S. 1094 (2000) (citations omitted). 23 The crimes of conviction included soliciting the murder of 24 Egyptian President Hosni Mubarak while he was visiting New York 25 City; attacking American military installations; conspiring to 26 murder President Mubarak; conspiring to bomb the World Trade 27 Center in 1993, which succeeded; conspiring subsequently to bomb 28 various structures in New York City, including bridges, tunnels, 29 and the federal building containing the New York office of the 30 Federal Bureau of Investigation ("FBI"), which did not succeed; 31 and conspiring to commit crimes of sedition. Id. at 103-04, 107- 32 11. For these crimes, Abdel Rahman was sentenced to be

3

A fatwa has elsewhere been defined as "a religious opinion on Islamic law issued by an Islamic scholar." Sattar III, 314 F.

Supp. 2d at 289; cf. United States v. Al-Moayad, 545 F.3d 139, 151 (2d Cir. 2008) (referring to it as a "religious ruling").

10

1 incarcerated for the remainder of his life. Id. at 148. 2 Following his conviction and appeal therefrom, Abdel Rahman's 3 legal team focused on two goals: improving his conditions of 4 confinement, and obtaining his transfer from prison in the United 5 States to Egypt. 6 The government asserts that Abdel Rahman was linked to 7 various other acts of violence: He is said to be, or to have 8 been, a spiritual leader of what the indictment in the instant 9 prosecution refers to as "'al-Gama'a al-Islamiyya,' a/k/a 'al- 10 Gama'at,' a/k/a 'Islamic Gama'at,' a/k/a 'Egyptian al-Gama'at al- 11 Islamiyya'" (hereinafter, "al-Gama'a"), also referred to by the 12 district court and the parties in English as the "Islamic Group" 13 or "IG." See Superseding Indictment ¶ 8. Al-Gama'a was 14 designated a foreign terrorist organization ("FTO") by the United 15 States Secretary of State in 1997 pursuant to 8 U.S.C. § 1189, 16 see Notices, Designation of Foreign Terrorist Organizations, 17 Department of State, Office of the Coordinator for 18 Counterterrorism, 62 Fed. Reg. 52650 (Oct. 8, 1997), was 19 redesignated an FTO in 1999 and 2001, see Notices, Designation of 20 Foreign Terrorist Organizations, Department of State, Office of 21 the Coordinator for Counterterrorism, 64 Fed. Reg. 55112 (Oct. 8, 22 1999); Notices, Redesignation of Foreign Terrorist Organization, 23 Department of State, Office of the Coordinator for 24 Counterterrorism, 66 Fed. Reg. 51088 (Oct. 5, 2001), and remains 25 so designated today, see Foreign Terrorist Organizations, Fact 26 Sheet, Department of State, Office of the Coordinator for

11

1 Counterterrorism (Apr. 8, 2008), available at 2 http://www.state.gov/s/ct/rls/fs/08/103392.htm (last visited Mar. 3 28, 2009). 4 "Federal regulations provide that the Bureau of Prisons 5 may implement SAMs, '[u]pon direction of the Attorney General,' 6 when 'reasonably necessary to protect persons against the risk of 7 death or serious bodily injury.' 28 C.F.R. § 501.3(a)." In re 8 Basciano, 542 F.3d 950, 954 (2d Cir. 2008) (alteration in 9 original), cert. denied, 128 S. Ct. 1401 (2009). The Bureau of 10 Prisons, following Abdel Rahman's remand to its custody in August 11 1997, imposed severely restrictive SAMs upon him. They were 12 designed to prevent him from directing or facilitating yet more 13 violent acts of terrorism from his prison cell. The SAMs have 14 been renewed, and sometimes modified, every 120 days since they 15 were first imposed. 16 The May 11, 1998, SAMs applicable to Abdel Rahman 17 "prohibited [him] from having contact with . . . others (except 18 as noted in this document) that could foreseeably result in [him] 19 communicating information (sending or receiving) that could 20 circumvent the SAM intent of significantly limiting [his] ability 21 to communicate (send or receive) terrorist information." SAMs of 22 May 11, 1998, ¶ 3. To enforce this general prohibition, the 23 measures regulated Abdel Rahman's telephone contacts, id. ¶ 4, 24 his mail, id. ¶ 5, and his visitors' visits, id. ¶ 6. The 25 measures limited his telephone contacts solely to his attorneys 26 of record and his wife, id. ¶ 4(a), and prevented matters

12

1 discussed in those calls from being "divulged in any manner to 2 any third party," id. ¶ 4(c)(i). The measures required the 3 screening of all his outgoing and incoming non-legal mail, id. ¶ 4 5, and prohibited him from "talk[ing] with, or otherwise 5 communicat[ing] with, any representative of the news media," 6 including "through [his] attorney(s)/staff, or otherwise," id. 7 ¶ 8. The measures also provided for the monitoring of all non- 8 legal visits. Id. ¶ 6. On the condition that his attorneys 9 would not divulge any information to third parties, Abdel Rahman 10 was permitted to communicate with his legal team by telephone, 11 id. ¶¶ 4(a) & 4(d), mail, id. ¶ 5(a), and in person, id. ¶ 6, 12 with fewer restrictions than with other persons. Members of this 13 legal team included lawyers Ramsey Clark, Abdeen Jabara, Lawrence 14 Schilling, and defendant Lynne Stewart. 15 Subsequent versions of the SAMs retained similar 16 prohibitions and screening mechanisms including the prohibition 17 against communications with the news media. See, e.g., SAMs of 18 Apr. 7, 1999, ¶ 9; SAMs of Dec. 10, 1999, ¶ 9. They retained 19 similar provisions regarding legal communications, and 20 incorporated provisions requiring Abdel Rahman's attorneys to 21 sign affirmations acknowledging their receipt of the version of 22 the SAMs in effect. See, e.g., SAMs of Apr. 7, 1999, ¶ 4; SAMs 23 of Dec. 10, 1999, ¶ 4. By virtue of those affirmations, counsel 24 agreed to abide by the terms of SAMs then in effect. See, e.g., 25 Unsigned Affirmation of Abdeen Jabara, Apr. 2000; Unsigned 26 Affirmation of Ramsey Clark, Apr. 2000; Affirmation of Ramsey

13

1 Clark, Jan. 10, 2001; Affirmation of Abdeen Jabara, Jan. 10, 2 2001; Affirmation of Ramsey Clark, Apr. 24, 1997. 3 Stewart repeatedly executed such statements. On May 1, 4 1998, she signed a document entitled "Attorney Affirmation," in 5 which she affirmed, under penalty of perjury, the truth of 6 specified statements regarding the then-applicable SAMs: that she 7 had read the May 11, 1998, version of the SAMs; that she 8 "underst[ood] the restrictions contained in that document and 9 agree[d] to abide by its terms"; that during her visits to Abdel 10 Rahman she would "employ only cleared translators/interpreters 11 and [would] not leave [any] translator/interpreter alone with 12 inmate Abdel Rahman"; and that she would "only be accompanied by 13 translators for the purpose of communicating with inmate Abdel 14 Rahman concerning legal matters." Affirmation of Lynne Stewart, 15 May 1, 1998. Stewart also affirmed that neither she nor any 16 member of her office would "forward any mail received from inmate 17 Abdel Rahman to a third person" nor would she "use [her] 18 meetings, correspondence or phone calls with Abdel Rahman to pass 19 messages between third parties (including, but not limited to, 20 the media) and Abdel Rahman." Id. On May 16, 2000, and again on 21 May 7, 2001, Stewart signed similar affirmations under penalty of 22 perjury, again affirming that she had read the most recent 23 versions of the SAMs, and that she would not use her contact with 24 Abdel Rahman to pass messages between him and third parties, 25 including members of the media. Affirmation of Lynne Stewart, 26 May 16, 2000; Affirmation of Lynne Stewart, May 7, 2001.

14

1 Defendant Mohammed Yousry, a middle-aged New York 2 University graduate student who served as one of the legal team's 3 translators had also been, in that capacity, a member of Abdel 4 Rahman's trial team. As a translator, Yousry was permitted to 5 read to Abdel Rahman, who is blind, and to take dictation from 6 him. 7 Various members of the team, including Stewart and 8 Yousry, also maintained contact with defendant Ahmed Abdel 9 Sattar, who had served as a paralegal during Abdel Rahman's 10 trial. The evidence established that Sattar was in continual 11 contact with various members of al-Gama'a abroad. See, e.g., 12 Transcript of Conversation between Ahmed Abdel Sattar and Rifa'i 13 Ahmad Taha Musa, May 9, 2000. 14 The Visits to Abdel Rahman 15 Sometime in 1997, more than three years after Abdel 16 Rahman was taken into federal custody, a faction of al-Gama'a 17 declared a unilateral "cease-fire," i.e., a halting of violent 18 operations, in Egypt. When the cease-fire was first announced, 19 Abdel Rahman was understood to support it. 20 In November 1997, despite the cease-fire, a group 21 associated with al-Gama'a attacked, killed, and mutilated the 22 bodies of more than sixty tourists, guides, and guards at the 23 Hatshepsut Temple in Luxor, Egypt. Rifa'i Taha Musa ("Taha") -- 24 a military leader of al-Gama'a, a follower of Abdel Rahman, and 25 an unindicted co-conspirator herein -- was involved in the

15

1 incident.4 Alaa Abdul Raziq Atia ("Atia"), later a leader of 2 al-Gama'a's military wing in Egypt, was also involved in the 3 killings. Al-Gama'a later claimed responsibility for the attack 4 and demanded Abdel Rahman's release from prison in the United 5 States. 6 In January 1998, Abdel Rahman was assigned by the 7 Bureau of Prisons to the Federal Medical Center in Rochester, 8 Minnesota ("FMC Rochester"). In March 1999, Stewart and Yousry 9 visited him there. Prior to the visit, Stewart signed and 10 delivered to the United States Attorney's Office for the Southern 11 District of New York a document in which she affirmed, under 12 penalty of perjury, that she would abide by the SAMs imposed by 13 the Bureau of Prisons on Abdel Rahman. 14 At about this time, defendant Sattar was in contact 15 with members of al-Gama'a, who were divided over their support 16 for what remained of the cease-fire. Pro-cease-fire and anti- 17 cease-fire factions developed, and members of the organization 18 wanted Abdel Rahman to take a position on the matter. To that 19 end, several wrote messages addressed to Abdel Rahman, which they 20 sent to Sattar for delivery to Abdel Rahman. Sattar gave the 21 messages to Stewart and Yousry, who surreptitiously brought the 22 messages with them to Abdel Rahman during a subsequent visit in 23 May 2000.

4

In 1998, Taha joined with Osama Bin Laden and Ayman Al-

Zawahiri to sign a fatwa entitled "Jihad against the United States and the Jews." See Translation of World Islamic Front's Statement Urging Jihad Against Jews and Crusaders.

16

1 Yousry read the messages to Abdel Rahman during the 2 visit, and Abdel Rahman dictated to Yousry responses to some of 3 them. Yousry and Stewart then smuggled the responses out of FMC 4 Rochester among their legal papers, and sent them to Sattar. As 5 directed by Abdel Rahman, Sattar informed various members of al- 6 Gama'a that Abdel Rahman was willing to reconsider the 7 effectiveness of the cease-fire and had rejected the associated 8 idea that al-Gama'a should form a political party in Egypt. 9 News of Abdel Rahman's purported position spread. But 10 some members of the media in the Middle East expressed skepticism 11 about the veracity of Sattar's representations, questioning 12 whether they in fact came from Abdel Rahman or whether Sattar had 13 fabricated them himself. To refute those reports, Sattar and 14 Yousry asked one of Abdel Rahman's lawyers, former United States 15 Attorney General Ramsey Clark, to tell a reporter for an Arabic- 16 language newspaper that Abdel Rahman opposed al-Gama'a's 17 formation of a political party. Clark, they thought, would be 18 perceived as more authoritative than Sattar. Clark eventually 19 agreed to talk to the reporter. He told the reporter that "[t]he 20 Sheikh has said he believes that the formation of a new political 21 party to engage in politics in Egypt at this time is . . . not 22 correct and should not be done." Transcript of Conversation 23 between Ahmed Abdel Sattar, Mohammed Yousry, Ramsey Clark, and 24 Muhammad Al-Shafi'i, Nov. 5, 1999, at 15. 25 In September 1999, Farid Kidwani, the then-leader of 26 al-Gama'a's military wing, was killed along with three other

17

1 members of the group in a shootout with Egyptian police. 2 Kidwani's death precipitated further tension and debate within 3 al-Gama'a regarding the advisability and efficacy of the cease- 4 fire. 5 Taha sent another message to Sattar to be relayed to 6 Abdel Rahman urging Abdel Rahman to support the termination of 7 the cease-fire and noting that Taha and his associates needed a 8 "powerful word" from Abdel Rahman to achieve this goal. Taha 9 told Sattar that such support from Abdel Rahman would "strengthen 10 me among the brothers." Sattar agreed to send the message to 11 Abdel Rahman and prepared a letter to Abdel Rahman for that 12 purpose. In mid-September 1999, Clark and Yousry surreptitiously 13 took the letter, along with newspaper articles relating to the 14 killing of Kidwani in Egypt, with them during a visit to Abdel 15 Rahman in FMC Rochester. Yousry read the letter and newspaper 16 clippings aloud to Abdel Rahman. From these documents, Abdel 17 Rahman first learned of Kidwani's death. 18 Abdel Rahman dictated a letter to Yousry in response.

19 To those against whom war is made, permission 20 is given to fight, because they are wronged 21 (oppressed) -- and verily God is most 22 powerful for their aid. . . . The latest 23 thing published in the newspapers was about 24 the Egyptian regime's killing of four members 25 of the Group. This is . . . enough proof 26 that the Egyptian regime does not have the 27 intention to interact with this peaceful 28 Initiative [i.e., the cease-fire] which aims 29 at unification. I therefore demand that my 30 brothers, the sons of [al-Gama'a] do a 31 comprehensive review of the Initiative and 32 its results. I also demand that they 33 consider themselves absolved from it.

18

1 Transcript of Conversation between Ahmed Abdel Sattar and Rifa'i 2 Ahmad Taha Musa, Sep. 20, 1999, at 6-7 (emphasis omitted, 3 parenthetical in original). Sattar expected Clark to make a 4 public statement to similar effect, but Clark declined to do so. 5 On February 18 and 19, 2000, Yousry and Abdeen Jabara, 6 an Arabic-speaking lawyer and member of Abdel Rahman's legal 7 team, visited Abdel Rahman at FMC Rochester. They brought with 8 them another letter which included another message from Taha, 9 again asking for Abdel Rahman's support for ending the cease- 10 fire. But Jabara would not permit Abdel Rahman to dictate a 11 letter to Yousry in response. And, notwithstanding pressure from 12 Sattar and Taha, Jabara, like Clark before him, refused to issue 13 any public statement regarding Abdel Rahman's position on the 14 matter. 15 On May 16, 2000, defendant Stewart signed another 16 affirmation that she and her staff would abide by the SAMs. She 17 did not submit that affirmation to the United States Attorney's 18 Office until May 26. 19 On May 18, 2000, Stewart met with Sattar, who gave her 20 more letters for Abdel Rahman, including another message from 21 Taha yet again seeking Abdel Rahman's approval of an end to the 22 cease-fire. Taha asked Abdel Rahman to take a "more forceful 23 position" regarding the end of the cease-fire and to "dictate 24 some points we can announce in a press conference with Lynne." 25 Transcript of Second Audiovisual Recording involving Omar Abdel

19

1 Rahman, Mohammed Yousry, Lynne Stewart, and others, May 19, 2000, 2 ("Video Tr. May 19, 2000, Tape 2"),5 at 36. 3 On May 19 and 20, 2000, Stewart and Yousry visited 4 Abdel Rahman, taking Sattar's most recent letters with them, 5 including the letter containing the message from Taha. 6 Unbeknownst to them, the government, pursuant to a warrant, 7 videotaped the meetings. Yousry told Abdel Rahman that Abu 8 Sayyaf -- an Islamic terrorist group in the Philippines -- had 9 taken hostages to be used in bargaining for the release of Abdel 10 Rahman and others. When Yousry explained to Stewart that he was 11 "telling the Sheikh about the Abu Sayyaf group in the 12 Philippines" and how "they took hostages," Stewart replied, "Good 13 for them." Transcript of First Audiovisual Recording involving 14 Omar Abdel Rahman, Mohammed Yousry, and Lynne Stewart, May 19, 15 2000, at 27. 16 From the beginning of the visit, Stewart was aware of 17 the prison guards' presence. For example, she asked Yousry, "Do 18 they usually sit like this and watch us?" Id. at 10. And during 19 this meeting, Stewart and Yousry took overt steps to ensure that 20 the nature of their communication with Abdel Rahman would be 21 concealed from the prison guards. As she suggested to Yousry, 22 they "should give them [i.e., the guards] something to watch."

5

Similar citations to transcripts of audiovisual recordings of prison visits to Abdel Rahman will follow the same format, i.e., "Video Tr. May 19, 2000, Tape 1," "Video Tr. May 20, 2000, Tape 1," "Video Tr. May 20, 2000, Tape 2," and "Video Tr. July 13, 2001, Tape 2."

20

1 Id. at 11. When the guards were standing close to the window of 2 the conference room in which Abdel Rahman, Stewart, and Yousry, 3 were meeting Yousry told Stewart to "look at me and talk a little 4 bit because they are watching us closely." Id. at 51. While 5 Yousry read the message to Abdel Rahman, Stewart uttered a 6 meaningless series of phrases to Yousry so that it would appear 7 to an observer as though she was taking part in a three-way 8 conversation: "I am talking to you about. . . him going to have 9 a, uh, chocolate eh . . . heart attack here . . . . Why don't 10 you stop a minute now. And (UI)6 say to him that, you know, 'You 11 understood what we are saying, (UI).'" Id. As Stewart spoke, 12 Yousry said to Abdel Rahman, "I don't know, Sir, they are 13 standing very close by the glass. . . . Lynne says, (UI) when 14 they look, you look at me a little, talk, then look at the 15 Sheikh." Id. 16 Stewart continued to talk while Yousry read aloud 17 Taha's statement in Sattar's letter. Yousry explained to Abdel 18 Rahman that "Lynne just says anything, [laughing] (UI) Sir." Id. 19 at 52 (bracketed material in original). Stewart remarked, "I can 20 get an academy award for it." Id. 21 Stewart and Yousry then had this exchange:

22 YOUSRY: . . . Lynne, I think you should talk 23 to him because they are looking at me.

6

"UI" stands for "unintelligible."

21

1 STEWART: (UI) there (UI), they, uh, (UI). . . 2 [she taps Yousry's pad with her pen]7 uhm, if 3 he finds out what this is, then we’re . . . 4 [Laughs.]

5 YOUSRY: [Laughs] In trouble. 6 STEWART: [Laughing] Yeah, that's right.

7 Video Tr. May 19, 2000, Tape 2, at 29 (brackets in original). 8 Stewart and Yousry also took evasive action when a 9 guard appeared to take interest in their conversation. At one 10 point, while Yousry was conversing with Abdel Rahman, Stewart 11 touched Yousry's hand and said "Why don't you stop there and 12 we'll talk a minute um, the, uh. . . . Ahmed's youngest son 13 needs glasses, did you know that?" Id. at 30. Yousry then 14 explained to Abdel Rahman, "Lynne says, stop a little because 15 they are by the glass." Id. Not long afterwards, Stewart tapped 16 with the pen on the paper in front of Yousry and told him to 17 "continue reading this 'cause this is setting up the 18 organizational system around his conditions." Id. Yousry 19 continued reading. Stewart then made a series of statements 20 unrelated to the substance of the conversation between Yousry and 21 Abdel Rahman. Yousry kept Abdel Rahman informed of what Yousry 22 and Stewart were doing, noting that "Lynne continues to eh, she's 23 watching them, she's watching them," to which Abdel Rahman 24 replied, "[v]ery good, very good." Id. at 33. After Yousry

7

These bracketed comments, which are in the original transcripts of the audiovisual recordings that were introduced as exhibits, are descriptions of relevant visual information.

22

1 finished reading Taha's message to Abdel Rahman, he returned it 2 to a notebook that he had brought with him and with which he 3 left. 4 On the second day of the same visit, Abdel Rahman 5 dictated to Yousry, among other things, a letter to an al-Gama'a 6 lawyer who favored the cease-fire, asking him to allow others in 7 al-Gama'a to criticize it, and another to Taha asking him to 8 "escalate the language" of criticism of the cease-fire. Video 9 Tr. May 20, 2000, Tape 2, at 32. 10 Meanwhile, Stewart and Yousry continued to engage in 11 what Stewart later called "[c]overing noises," Video Tr. July 13, 12 2001, Tape 2, at 12, and other tactics designed to obscure the 13 nature of what they were doing. After one such incident, Yousry 14 explained to Abdel Rahman, "[S]he just has to say that in order 15 to break the . . . The people are looking." Video Tr. May 20, 16 2000, Tape 1, at 14. Stewart told Yousry, "I am making 17 allowances for them looking in at us and seeing me never speaking 18 and writing away here while you talk Arabic." Id. at 17. She 19 then directed Yousry to "talk back to me now, because otherwise 20 it doesn't make any sense. . . . So say something in 21 English . . . ." Id. As Yousry explained to Abdel Rahman, "We 22 are now acting, I talk to her in Arabic, and she responds in 23 English, and they don't understand what is going on." Video Tr. 24 May 20, 2000, Tape 2, at 38. 25 At the end of the visit, Stewart and Yousry took the 26 Yousry-transcribed responses from Abdel Rahman with them from the

23

1 prison, and later gave them to Sattar. Sattar then passed them 2 along to Taha and another member of al-Gama'a. Sattar also spoke 3 to various members of al-Gama'a, informing them that Abdel Rahman 4 would have "no objection" to a return to violence. Transcript of 5 Audio Recording of Ahmed Abdel Sattar, Rifa'i Ahmad Taha Musa, 6 and Salah Hashim, May 29, 2000, at 3. 7 At about this time, Sattar told members of al-Gama'a 8 that Stewart would be making a public statement about Abdel 9 Rahman's views on the cease-fire. Sattar and Stewart first 10 discussed what Stewart would say to the press. Then, on June 13, 11 2000, Sattar and Stewart spoke to Esmat Salaheddin, a Reuters 12 reporter based in Cairo. Stewart told Salaheddin that Abdel 13 Rahman "is withdrawing his support for the ceasefire that 14 currently exists." Trial Transcript ("Trial Tr.") at 5574, 5617, 15 testimony of Salaheddin. She explained that Abdel Rahman had 16 made the statement from prison two weeks before. 17 The next day, other Middle Eastern press outlets 18 carried the news that Abdel Rahman had withdrawn his support for 19 the cease-fire. Many noted that for the cease-fire to hold, 20 Abdel Rahman's support was essential. 21 On June 20, 2000, Stewart participated in a telephone 22 conference with Abdel Rahman. She then sent another statement on 23 Abdel Rahman's behalf via facsimile to Salaheddin, the Reuters 24 reporter in Cairo. The telecopy said, "Everything said in the 25 previous statements is correct" and quoted Abdel Rahman as 26 saying, "I do withdraw my support to the [cease-fire]

24

1 initiative." Statement for Release, Abdel Rahman, June 20, 2000. 2 Following Stewart's statements on Abdel Rahman's behalf, several 3 members of al-Gama'a began preparations to engage anew in acts of 4 violence. 5 On October 4, 2000, Sattar and Taha completed a fatwa 6 on Abdel Rahman's behalf, imitating his style, "mandating the 7 killing of the Israelis everywhere" and "the killing [of] the 8 Jews wherever they are (UI) and wherever they are found." 9 Transcript of Audio Recording of Ahmed Abdel Sattar and Yassir 10 Al-Sirri Oct. 4, 2000, ("Audio Tr. Oct. 4") at 13-16.8 Sattar

8

Sattar read the fatwa to Yassir Al-Sirri, a London-based supporter of al-Gama'a and an unindicted co-conspirator, during a telephone conversation that was intercepted by U.S. agents.

Another portion of the transcript of the conversation reads in small part:

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.

Your Brother, Omar Abdel Rahman . . . [i]n (continued...)

25

1 sent the fatwa to, among others, Atia, who had in the meantime 2 become the military leader of al-Gama'a. Upon receiving the 3 message, Atia began preparing for an attack. But, on October 19, 4 2000, before Atia could act, the Egyptian authorities raided his 5 hideout, killing him and killing or arresting other al-Gama'a 6 members. 7 On July 13 and 14, 2001, Stewart again paid a visit to 8 Abdel Rahman at FMC Rochester, having signed a revised 9 affirmation agreeing to abide by the SAMs and having sent the 10 affirmation by facsimile to the United States Attorney's Office 11 for the Southern District of New York on May 7, 2001. Stewart 12 again, with Yousry's assistance and contrary to provisions of the 13 SAMs, surreptitiously brought messages to and from Abdel Rahman. 14 Procedural History 15 On April 8, 2002, the defendants were indicted in 16 connection with these and related acts; a superseding indictment 17 was filed on November 19, 2003. On February 10, 2005, a jury 18 found the defendants guilty on all counts in the superseding 19 indictment. Specifically, all three defendants were convicted of 20 conspiring to defraud the United States in violation of 18 U.S.C. 21 § 371 (Count One) by violating SAMs imposed upon Abdel Rahman, 22 and various related offenses. Sattar was convicted of conspiring

8

(...continued)

the USA's prisons, and a scholar of the Azhar.

Audio Tr. Oct. 4 at 13, 15-17.

26

1 with Taha, Abdel Rahman, and others to murder persons in a 2 foreign country in violation of 18 U.S.C. § 956 (Count Two), and 3 with soliciting persons to commit crimes of violence -- murder 4 and conspiracy to commit murder -- in violation of 18 U.S.C. § 5 373 (Count Three). Stewart and Yousry were convicted of 6 providing and concealing material support to the Count-Two 7 conspiracy, in violation of 18 U.S.C. § 2339A and 18 U.S.C. § 2 8 (Count Five), and with conspiracy to provide and conceal such 9 support, in violation of 18 U.S.C. § 371 (Count Four). Stewart 10 was also convicted of making false statements in violation of 18 11 U.S.C. § 1001 (Counts Six and Seven). 12 On October 16, 2006, following the denial of the 13 defendants' motions for a judgment of acquittal and other relief, 14 the district court sentenced the defendants. See Sentencing 15 Transcript of Oct. 16, 2006 ("Sent'g Tr."). Sattar was sentenced 16 to a 288-month term of incarceration to be followed by a five- 17 year term of supervised release and a $300 special assessment; 18 Stewart was sentenced to a 28-month term of incarceration to be 19 followed by a two-year term of supervised release and a $500 20 special assessment; and Yousry was sentenced to a 20-month term 21 of incarceration to be followed by a two-year term of supervised 22 release and a $300 special assessment. Sattar is currently 23 serving his sentence; Stewart and Yousry are free on bail pending 24 appeal.9

9

We are aware of a statement famously attributed to (continued...)

27

1 All three defendants appeal, challenging the validity 2 of their convictions on a variety of grounds. The government 3 challenges the reasonableness of the sentences on cross-appeal. 4 DISCUSSION 5 I. Standard of Review 6 We review de novo the district court's legal 7 conclusions, including those interpreting and determining the 8 constitutionality of a statute. United States v. Awadallah, 349 9 F.3d 42, 51 (2d Cir. 2003), cert. denied, 543 U.S. 1056 (2005). 10 We also review de novo a district court's denial of a motion 11 pursuant to Federal Rule of Criminal Procedure 29 for a judgment 12 of acquittal on the ground that the evidence was insufficient to 13 sustain the conviction. United States v. Florez, 447 F.3d 145, 14 154 (2d Cir.), cert. denied, 549 U.S. 1040 (2006). Because the 15 jury verdict will be upheld against a sufficiency challenge "if 16 we find that 'any rational trier of fact could have found the 17 essential elements of the crime beyond a reasonable doubt,'" 18 United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000) 19 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis

9

(...continued)

Stewart by, inter alia, the Los Angeles Times, immediately following her sentencing: "I can do that [time] standing on my head." Ellen Barry, Terrorist's Lawyer Gets Two-Year Term, L.A.

Times, Oct. 17, 2006, at A12. A fuller purported quotation in the article reads, "I don't think anybody would say that to go to jail for two years is anything to look forward to. But -- as some of my clients once put it -- I can do that standing on my head." Id. Whether Stewart made this statement in full, in part, or not at all, is obviously entirely irrelevant to any of the issues before us.

28

1 in Jackson)), a convicted defendant making such a claim "bears a 2 very heavy burden," United States v. Desena, 287 F.3d 170, 177 3 (2d Cir. 2002). We are required to evaluate "all of the evidence 4 in the light most favorable to the government." United States v. 5 Aleskerova, 300 F.3d 286, 292 (2d Cir. 2002). 6 II. Count One 7 Each defendant asserts that the evidence admitted at 8 trial was insufficient to support his or her conviction under 18 9 U.S.C. § 371 for defrauding the United States and obstructing the 10 Department of Justice and the Bureau of Prisons in the 11 administration and enforcement of the SAMs in force with respect 12 to Abdel Rahman. Stewart also argues that the SAMs do not apply 13 to lawyers, and that the district court improperly prevented her 14 from challenging the underlying validity of the SAMs. 15 A. Sufficiency of the Evidence 16 In order to establish a conspiracy-to-defraud offense 17 under 18 U.S.C. § 371 as charged in Count One of the indictment, 18 a reasonable jury must have been able to conclude beyond a 19 reasonable doubt "(1) [that the defendants] entered into an 20 agreement (2) to obstruct a lawful function of the government [in 21 this case, the administration and enforcement of the SAMs] (3) by 22 deceitful or dishonest means and (4) at least one overt act in 23 furtherance of the conspiracy." United States v. Ballistrea, 101 24 F.3d 827, 832 (2d Cir. 1996), cert. denied, 520 U.S. 1150 (1997) 25 (citation and internal quotation marks omitted). "'Both the 26 existence of a conspiracy and a given defendant's participation

29

1 in it with the requisite knowledge and criminal intent may be 2 established through circumstantial evidence.'" United States v. 3 Huezo, 546 F.3d 174, 180 (2d Cir. 2008) (quoting United States v. 4 Stewart, 485 F.3d 666, 671 (2d Cir. 2007)) (alteration omitted). 5 1. Evidence as to Stewart. Stewart argues that her 6 defiance of the SAMs was open, not deceitful. One aspect of her 7 defiance was undoubtedly public -- the conveyance of Abdel 8 Rahman's statements regarding the cease-fire and related matters 9 to the Reuters journalist. But we agree with the district court 10 that "[a] reasonable jury could certainly [have found] that 11 Stewart gained access to Abdel Rahman [and thereby the 12 information that she conveyed to the journalist] by deceit and 13 dishonest means." Sattar V, 395 F. Supp. 2d at 89. "Without 14 [Stewart's] agreement to abide by the SAMs and the other 15 representations contained in her affirmations, she knew that she 16 would not have been allowed to visit Abdel Rahman," id.; see also 17 id. at 84-89, and therefore would not later have been able to 18 defy the regulations openly by publicizing messages on his 19 behalf. 20 Stewart insists that she acted with the intent, not to 21 defraud the government, but to "zealously" represent her 22 client.10 But the jury had a reasonable basis on which to

10

The word "zealot," taken from a first century A.D. anti-

Roman Jewish movement, carries with it overtones of fanaticism, see The American Heritage Dictionary of the English Language 2000 (4th ed. 2000). The American Heritage Dictionary lists as principal definitions: "1a. One who is zealous, especially (continued...)

30

1 disbelieve this, and to "disbelieve that zealous representation 2 included filing false affirmations, hiding from prison guards the 3 delivery of messages to Abdel Rahman, and the dissemination of 4 responses by him that were obtained through dishonesty." Id. at 5 90. Moreover, even if Stewart acted with an intent to represent 6 her client zealously, a rational jury could nonetheless have 7 concluded that Stewart simultaneously acted with an intent to 8 defraud the government. A genuinely held intent to represent a 9 client "zealously" is not necessarily inconsistent with criminal 10 intent. 11 2. Evidence as to Yousry. Yousry argues that, as a 12 translator who was taking direction from others, he did only what 13 he was told to do and acted in good-faith reliance on the 14 guidance and conduct of the members of the bar for whom he 15 worked. Based on the evidence admitted at trial, however, a 16 rational jury could have found that Yousry knew of and understood 17 the terms of the SAMs.

10

(...continued)

excessively so. b. A fanatically committed person." Id.

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.

31

1 Yousry had in his possession the December 1999 version 2 of the SAMs as well as a copy of the underlying regulations. 3 That version of the SAMs provided that Abdel Rahman's legal team 4 could pass along to him "only inmate case-related 5 correspondence," and set forth a process for screening all non- 6 legal mail. SAMs of Dec. 10, 1999, ¶ 7. The SAMs in Yousry's 7 possession also specifically prohibited Abdel Rahman's 8 communication with news media "in person, by telephone, by 9 furnishing a recorded message, through the mails, through his 10 attorney(s), or otherwise." Id. ¶ 9. Yousry himself 11 acknowledged that members of the legal team were not "to disclose 12 any portion of their conversation with the Sheik to the media." 13 Excerpts from Draft of Dissertation of Mohammed Yousry at 29. 14 Yousry also knew that Clark and Jabara had refused to relay 15 messages from Abdel Rahman. 16 From this evidence, a reasonable factfinder could 17 conclude beyond a reasonable doubt that Yousry knew that his 18 assistance, by providing translation services, in facilitating 19 Abdel Rahman's continued contact with members of al-Gama'a 20 violated the SAMs. Moreover, as with Stewart, Yousry's deceptive 21 and evasive conduct during the course of his visits to Abdel 22 Rahman undercuts his claim of good faith. 23 Yousry argues that the evidence established, at most, 24 that he intended to violate the SAMs, not that he knew that doing 25 so might constitute a crime. But even if he misunderstood the

32

1 law in that respect, such a mistake provides no defense to a 2 charge of criminal misbehavior. See Cheek v. United States, 498 3 U.S. 192, 199 (1991). The fact that Yousry was aware that his 4 acts, in knowing violation of the SAMs, would defraud the 5 government is sufficient to sustain the conviction. The 6 government need not also prove that he knew that there was a 7 criminal statute -- 18 U.S.C. § 371 -- that criminalized such 8 behavior. "The general rule that ignorance of the law or a 9 mistake of law is no defense to criminal prosecution is deeply 10 rooted in the American legal system." Cheek, 498 U.S. at 199. 11 B. Propriety of the SAMs 12 1. Stewart's Argument. Stewart contends that the 13 district court erred by preventing her from challenging the 14 validity of the SAMs as part of her defense. She sought to argue 15 that the Attorney General has no authority to have lawyers held 16 criminally liable for violating the SAMs and that the SAMs are 17 unconstitutionally vague as applied to her. Under Dennis v. 18 United States, 384 U.S. 855 (1966), however, Stewart's strategy 19 of collaterally attacking the validity of the SAMs is futile. 20 As the Supreme Court recognized in Dennis, there are 21 "appropriate and inappropriate ways to challenge acts of 22 government thought to be unconstitutional." Id. at 867. There 23 is "no reason for [federal courts] to consider the 24 constitutionality of a statute at the behest of petitioners who 25 have been indicted for conspiracy by means of falsehood and

33

1 deceit to circumvent the law which they now seek to challenge." 2 Id. at 866. Stewart, like the defendants in Dennis, was indicted 3 for engaging in a "voluntary, deliberate and calculated course of 4 fraud and deceit." Id. at 867. This is a "prosecution directed 5 at [Stewart's] fraud[,] not an action to enforce the [law] 6 claimed to be unconstitutional." Id.11 7 The result may be different where the constitutionality 8 of a law is "challenged by those who of necessity violate its 9 provisions and seek relief in the courts," id. at 865, or where 10 the governmental action at issue was taken with no "colorable 11 authority," United States v. Barra, 149 F.2d 489, 490 (2d Cir.

11

The fraudulent scheme in Dennis related to a statutory scheme, whereas the fraudulent conduct here related to a regulatory one. The fundamental principles, however, remain the same; the central issue remains the deceitful act, not the form or nature of the governmental conduct that prompted the deceit.

34

1 1945).12 But, as with Dennis, "[t]his is not such a case." 384 2 U.S. at 865. 3 We have no basis upon which to entertain a doubt as to 4 the authority of the Attorney General of the United States to 5 ensure that reasonable measures are designed and implemented in 6 an attempt to prevent imprisoned criminals who are considered 7 dangerous despite their incarceration from engaging in or 8 facilitating further acts of criminality from their prison cells. 9 See 28 C.F.R. § 501.3(a) (setting forth the boundaries of that 10 authority). Nor have we any reason to doubt the Attorney 11 General's conclusion that Abdel Rahman fits within that category

12

The defendants here are not, of course, subject to a contempt proceeding for violation of an injunction. But we note some similarity between the principles established in Dennis and the collateral bar rule of Walker v. Birmingham, 388 U.S. 307, 315 (1967), which limits the ability to defend against charges of contempt for violating a court-ordered injunction on the ground that the injunction itself was unconstitutional, see Matter of Providence Journal Co., 820 F.2d 1342, 1346 (1st Cir. 1986), modified, 820 F.2d 1354 (1st Cir. 1987), cert. dismissed, 485 U.S. 693 (1988) ("As a general rule, a party may not violate [a court] order and raise the issue of its unconstitutionality collaterally as a defense in the criminal contempt proceeding.

Rather, the appropriate method to challenge a court order is to petition to have the order vacated or amended."). With respect to exceptions to the "general rule," there is also some similarity between Barra, 149 F.2d at 490 (allowing prosecution for making false statements in connection with government requests for information so long as the government "has colorable authority to do what it is doing'") and Matter of Providence Journal Co., 820 F.2d at 1344, 1352 (allowing collateral attack on an injunction in contempt proceeding for violating that injunction where it was a "transparently invalid prior restraint on pure speech").

35

1 of prisoner. He has demonstrated his willingness to engage in 2 violent criminality not by acting violently himself, but by 3 ordering, encouraging, and conspiring with others who would 4 actually shed the blood. The likelihood that he would continue 5 to order, direct, or encourage such acts from prison, if he 6 could, was plain, and his incapacitation reasonably required not 7 just his physical immobility, but also his virtual silence vis-à- 8 vis the world at large. 9 Stewart might have effectively challenged the SAMs by 10 refusing to sign the affirmations in which she said she would 11 abide by them. She might then have invoked the jurisdiction of 12 the courts by bringing suit on Abdel Rahman's or her own behalf 13 to challenge their validity. She might have argued -- as she 14 forcefully does here -- that the SAMs interfered with her 15 capacity to effectively represent Rahman. But she did not. 16 Instead, she signed the affirmations. Having chosen that path, 17 she cannot be heard to attack the validity of those measures when 18 called to account for violating them, especially where, as here, 19 her fraudulent and deceptive conduct endangered people's lives. 20 The district court did not err in preventing Stewart 21 from challenging the validity of the SAMs as part of her defense, 22 and the jury acted within its province when it found that Stewart 23 intentionally and fraudulently subverted them. 24 2. Sattar's Related Arguments on Appeal. Sattar relies 25 on Stewart's and Yousry's arguments with respect to Count One.

36

1 For the reasons set forth above addressing those arguments, we 2 conclude that they are also unpersuasive as applied to him. 3 III. Counts Two and Three 4 Only Sattar was charged in Counts Two and Three of the 5 superseding indictment. He does not challenge the sufficiency of 6 the evidence supporting his Count Two conviction for conspiring 7 with Abdel Rahman, Taha, and others to murder persons in a 8 foreign country, in violation of 18 U.S.C. § 956.13 Instead, he 9 asserts that the district court should have dismissed this count 10 on the grounds of vindictive prosecution. Similarly, Sattar does 11 not challenge his conviction on Count Three for soliciting 12 persons to engage in crimes of violence -- murder and conspiracy 13 to commit murder -- in violation of 18 U.S.C. § 373.14 He argues 14 instead that he was denied a fair trial. These arguments are 15 addressed below in the context of the defendants' more general 16 challenges to the probity of the proceedings. 17 IV. Counts Four and Five 18 Stewart and Yousry challenge their Count Five 19 convictions for violating 18 U.S.C. § 2339A and 18 U.S.C. § 2 by 20 providing and concealing material support for the Count-Two 21 conspiracy for which Sattar was convicted and their Count Four

13

By special verdict, the jury concluded that the object of the Count-Two conspiracy was murder, not kidnaping.

14

By special verdict, the jury concluded that the crimes of violence Sattar solicited were murder and conspiracy to murder.

37

1 convictions for conspiracy to provide and conceal such support, 2 in violation of 18 U.S.C. § 371. They argue that the evidence 3 was insufficient to support their conviction on either count, and 4 contend that their conduct was constitutionally protected in any 5 event. 6 A. History of the Charges 7 By way of background, the initial indictment charged 8 all three defendants with violating 18 U.S.C. § 2339B.15 The 9 defendants argued before the district court that "18 U.S.C. 10 § 2339B is unconstitutionally vague . . . with regard to the 11 statute's prohibition on providing material support or resources 12 in the form of communications equipment and personnel." Sattar 13 I, 272 F. Supp. 2d at 356 (internal quotation marks omitted). 14 The district court agreed, and therefore dismissed those charges. 15 Id. at 361.16 16 The government then filed a superseding indictment 17 alleging that by essentially the same course of conduct, i.e., 18 coordinating the surreptitious passage of al-Gama'a messages to 19 and from Abdel Rahman, Stewart and Yousry violated 18 U.S.C.

15

At the time of the relevant offense conduct, section 2339B provided, in relevant part, that "[w]hoever, within the United States or subject to the jurisdiction of the United States, knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be [guilty of a crime.]" 18 U.S.C. § 2339B(a)(1)

(2000).

16

The constitutionality of 18 U.S.C. § 2339B is not before us.

38

1 § 2339A.17 The relevant version of section 2339A, entitled 2 "Providing material support to terrorists," provided in relevant 3 part:

4 Whoever, within the United States, provides 5 material support or resources or conceals or 6 disguises the nature, location, source, or 7 ownership of material support or resources, 8 knowing or intending that they are to be used 9 in preparation for, or in carrying out, a 10 violation of [various enumerated statutes 11 related to terrorism] or in preparation for, 12 or in carrying out, the concealment of an 13 escape from the commission of any such 14 violation, or attempts or conspires to do 15 such an act, shall be [subject to criminal 16 punishment].

17 18 U.S.C. § 2339A(a) (2000). For purposes of both sections 2339A 18 and 2339B, "material support or resources" may be provided in the 19 form of:

20 currency or other financial securities, 21 financial services, lodging, training, 22 safehouses, false documentation or 23 identification, communications equipment, 24 facilities, weapons, lethal substances, 25 explosives, personnel, transportation, and 26 other physical assets, except medicine or 27 religious materials.

28 18 U.S.C. § 2339A(b)(1) (2000); see also id. § 2339B(g)(4) (2000) 29 ("[T]he term 'material support or resources' has the same meaning 30 given that term in section 2339A . . . ."). Section 2339A, 31 however, in contrast to section 2339B, does not penalize the

17

The superseding indictment did not charge Sattar with violating section 2339B; instead, he was charged with conspiracy to murder persons in a foreign country in violation of 18 U.S.C.

§ 956, i.e., Count Two.

39

1 provision of material support without regard to what the support 2 is for. Section 2339A requires instead that the defendant 3 provide support or resources with the knowledge or intent that 4 such resources be used to commit specific violent crimes.18 5 The government charged that the defendants provided 6 "material support or resources" in the form of "personnel" -- 7 namely, Abdel Rahman -- to the Count-Two conspiracy, knowing or 8 intending that Abdel Rahman, as an active co-conspirator, would 9 help commit crimes. See Sattar III, 314 F. Supp. 2d at 296. The 10 government further asserted that Stewart and Yousry "conceal[ed] 11 and disguise[d] the nature, location, and source" of their 12 material support by means of the defendants' covert conduct 13 disguising Abdel Rahman's participation as a co-conspirator. See 14 id. The government had initially argued that Stewart and Yousry 15 could be convicted for providing themselves as "personnel" to a 16 foreign terrorist organization and by providing communications 17 equipment to the conspiracy. After the dismissal of the section 18 2339B charges and following the filing of the superseding 19 indictment, however, the government abandoned those contentions. 20 See id.

18

Section 2339B criminalizes the knowing provision of material support. See 18 U.S.C. § 2339B(a)(1) (2000). Section 2339A criminalizes the provision of material support knowing or intending that such support is used to aid crimes of terrorism.

See 18 U.S.C. § 2339A(a) (2000). Therefore, the mental state in section 2339A extends both to the support itself, and to the underlying purposes for which the support is given.

40

1 As an initial matter, Stewart and Yousry challenge the 2 sufficiency of the evidence supporting their convictions on this 3 count. They also argue that the district court erroneously 4 instructed the jury on the elements of a violation of section 5 2339A. In addition, they raise more general challenges to the 6 statute, arguing that section 2339A does not criminalize the 7 behavior alleged in the indictment, that the provision is 8 unconstitutional as a multi-level inchoate offense, and that the 9 statute is unconstitutionally vague as applied to them. We 10 examine their arguments in the context of the statutory elements 11 of the crime, addressing first the sufficiency arguments.

12 B. Elements of Section 2339A 13 14 1. Proof of the Underlying Conspiracy to Kill Persons

15 Abroad.19 There was sufficient evidence of the existence of the 16 predicate crime -- the Count-Two conspiracy to kill or kidnap -- 17 for which Sattar was convicted. Indeed Sattar, the only 18 defendant charged with and convicted of participating in the 19 Count-Two conspiracy, does not challenge the sufficiency of the 20 evidence as to this count. 21 The government offered evidence that Sattar and Taha 22 composed a fatwa in Abdel Rahman's name calling for "the killing 23 [of] the Jews wherever they are (UI) and wherever they are

19

As noted above, the jury found that the underlying conspiracy involved the murder, not the kidnaping, of persons abroad.

41

1 found." Audio Tr. Oct. 4, at 15. It also offered proof that 2 this fatwa was communicated to Atia, an al-Gama'a military 3 leader. Although the evidence may not have established any 4 particular plan of action to execute the fatwa, a reasonable jury 5 could have found beyond a reasonable doubt from the fatwa's 6 exhortations and Atia's readiness to act on it that there was a 7 concrete, illegal objective to murder persons abroad. 8 A review of the transcripts of various intercepted 9 telephone conversations introduced into evidence, particularly 10 the September 18, 2000, conversation involving Sattar, Taha, and 11 another party, bolsters this conclusion. The discussion goes 12 well beyond the abstract and contemplates the coordination with 13 Atia of violent actions, presumably along the lines of the Luxor 14 massacre. In light of such evidence, a rational jury could have 15 found beyond a reasonable doubt that the conspiracy as charged in 16 Count Two existed. 17 2. Proof of Material Support to the Conspiracy. 18 Stewart and Yousry also assert that they did not provide material 19 support in the form of "personnel" to the Count-Two conspiracy. 20 A reasonable jury could have concluded otherwise. There was 21 evidence introduced at trial sufficient to support a reasonable 22 juror's inference that Stewart and Yousry helped Abdel Rahman 23 participate covertly in the conspiracy to engage in violence 24 abroad by communicating to members of al-Gama'a and others his 25 withdrawal of support for the cease-fire. Abdel Rahman's

42

1 instrumental participation -- indeed, his leadership -- would, as 2 the district court observed, have been unavailable to the Count- 3 Two conspiracy "without the active participation of Stewart and 4 Yousry." Sattar V, 395 F. Supp. 2d at 95. 5 The defendants argue that the government established 6 only that they provided the underlying conspiracy with Abdel 7 Rahman's "pure speech" and therefore did not provide "personnel" 8 within any constitutional interpretation of section 2339A. The 9 government does not deny that section 2339A may not be used to 10 prosecute mere advocacy or other protected speech, but contends 11 that the defendants were prosecuted for criminal actions that did 12 not amount to protected speech. 13 Resolution of this dispute does not turn on whether the 14 prosecution introduced evidence of "pure speech." "Numerous 15 crimes under the federal criminal code are, or can be, committed 16 by speech alone," and certain crimes "are characteristically 17 committed through speech." Rahman, 189 F.3d at 117. The issue 18 is, instead, whether Abdel Rahman's statements were protected 19 speech. We conclude that the statements were not protected such 20 as to cast doubt on the convictions. 21 Words that are "the very vehicle of [a] crime" are not 22 protected "merely because, in part, [the crimes] may have 23 involved the use of language." United States v. Rowlee, 899 F.2d 24 1275, 1278 (2d Cir.), cert. denied, 498 U.S. 828 (1990). As we 25 recognized when affirming Abdel Rahman's sentence, "freedom of

43

1 speech and of religion do not extend so far as to bar prosecution 2 of one who uses a public speech or a religious ministry to commit 3 crimes." Abdel Rahman, 189 F.3d at 116-17. "[I]f the evidence 4 shows that the speeches crossed the line into criminal 5 solicitation, procurement of criminal activity, or conspiracy to 6 violate the laws, the prosecution is permissible." Id. at 117. 7 Words "that instruct, solicit, or persuade others to commit 8 crimes of violence . . . violate the law and may be properly 9 prosecuted regardless of whether they are uttered in private, or 10 in a public speech, or in administering the duties of a religious 11 ministry." Id. 12 The dissemination of some of the speech introduced at 13 trial might be viewed as nothing more than the expression of 14 views on the broad political situation in Egypt. For example, in 15 reaffirming that he was withdrawing his support for the cease- 16 fire, Abdel Rahman said that he had "expressed [his] opinion and 17 left the matters to [his] brothers to examine it and study it." 18 Statement for Release, Abdel Rahman, June 20, 2000. 19 But a reasonable jury could have found, in light of 20 Abdel Rahman's role as "spiritual" leader of al-Gama'a, that his 21 messages were ultimately intended to sway al-Gama'a members to 22 end the cease-fire, and by implication to commit criminal acts of 23 violence. Abdel Rahman's statements were therefore not an 24 expression of opinion, but a call to arms.

44

1 The evidence establishes, moreover, more than a one-way 2 broadcast of Abdel Rahman's views. Abdel Rahman's comments were 3 made in direct response to solicitations of his views from other 4 al-Gama'a members who were seeking to effect an end to the cease- 5 fire and to resume violence. In light of the information 6 available to Abdel Rahman at the time, a reasonable jury could 7 have read his statements as tailored to and necessary for 8 al-Gama'a's operations and increased use of violence. Viewed 9 through this lens, Abdel Rahman's statements were not materially 10 different in substance from a crime boss making decisions about 11 his criminal enterprise from prison and ordering a "hit." 12 3. Proof Regarding Knowing or Intentional Provision of 13 Material Support. Stewart and Yousry argue that the prosecution 14 did not prove the requisite mental state to sustain their 15 convictions. They contend that they were not aware of the 16 existence of the conspiracy charged in Count Two and therefore 17 could not have intended to aid it. 18 These arguments are unavailing. From the evidence at 19 trial, a reasonable factfinder could have concluded that Stewart 20 and Yousry knew (1) that an active group of people within 21 al-Gama'a including, most notably, Taha, sought to commit violent 22 crimes but were hindered by the cease-fire and by those members 23 of al-Gama'a who sought to adhere to it; (2) that the support of 24 Abdel Rahman -- a key leader of the group -- was critical to the 25 continued maintenance of the cease-fire; and (3) that, in light

45

1 of the letters and messages from Taha and Sattar that Yousry read 2 to Abdel Rahman in prison, Abdel Rahman's particular opinion 3 regarding the cease-fire -- and not the view of any other person 4 -- would be dispositive on the question of whether al-Gama'a 5 members would continue to abide by the cease-fire. A reasonable 6 factfinder could thus have concluded that Yousry and Stewart 7 actively and intentionally facilitated communications between 8 Abdel Rahman and al-Gama'a, in part by engaging in various ruses 9 during the course of their visits to Abdel Rahman, and thereby 10 effectively delivered Abdel Rahman's order to commit violence. 11 Stewart also did so by reaffirming to the press Abdel Rahman's 12 stated withdrawal of support for the cease-fire, thereby 13 dispelling any notion that the message came not from Abdel Rahman 14 himself, but was instead fabricated by members of the pro- 15 violence faction of al-Gama'a. 16 C. Other Challenges with Respect to 18 U.S.C. § 2339A 17 1. Vagueness. Section 2339A criminalizes the provision 18 of material support or resources "knowing or intending" that they 19 are to be used to assist in certain enumerated crimes of 20 terrorism. 18 U.S.C. § 2339A(a) (full text set forth on page 21 [38], supra). Stewart and Yousry assert that insofar as the 22 statute does not require "conscious, knowing intent" or 23 "knowledge and intent," the statute is unconstitutionally vague 24 as applied to them. They argue that the district court should 25 have dismissed the section 2339A charges for substantially the

46

1 same reasons that it dismissed the section 2339B charges that 2 were contained in the initial indictment. The government urges 3 to the contrary that the text of section 2339A, which requires 4 "knowing or intending," 18 U.S.C. § 2339A(a) (emphasis added), is 5 sufficiently precise. 6 In analyzing the defendants' arguments in this regard, 7 we must focus on two major differences between the initial and 8 superseding indictment. 9 First, the statutes upon which they were based differ. 10 Unlike section 2339A, section 2339B penalizes the knowing 11 provision of material support alone. Unlike section 2339A, 12 section 2339B does not require for conviction proof that the 13 defendant has provided support or resources with the knowledge or 14 intent that such resources be used to commit specific violent 15 crimes.20 16 Second, the factual bases for the charges differ. In 17 the initial indictment, the government alleged that the 18 defendants violated section 2339B by the "provision" of 19 "communications equipment" to the conspiracy, Sattar I, 272 F. 20 Supp. 2d at 357, and the "provision" of themselves as "personnel" 21 to the conspiracy, id. at 358. In the superseding indictment, 22 the government charged instead that the defendants acted with the 23 "knowledge or intent" to provide material support. And rather

20

As already noted, the propriety of the district court's dismissal of the section 2339B charges from the initial indictment is not before us; we assume for purposes of this discussion that the district court was correct.

47

1 than proceeding on the theory that the defendants provided 2 themselves as "personnel" to the conspiracy, the superseding 3 indictment alleges that the defendants provided Abdel Rahman as 4 the "personnel." 5 As we have explained, the district court dismissed the 6 section 2339B charges on the ground that they were 7 unconstitutional as applied to the defendants. The basis for 8 dismissal of the "communications equipment" charges was that the 9 statute, as read to apply to the facts of this case, could 10 "criminaliz[e] the mere use of phones and other means of 11 communication [with] neither notice nor standards for [the 12 statute's] application." Id. And the basis for the dismissal of 13 the "personnel" charges, as framed in the initial indictment, was 14 that such a charge could criminalize the actions of "'[s]omeone 15 who advocates the cause of the [Foreign Terrorist 16 Organization].'" Id. at 359 (quoting Humanitarian Law Project v. 17 Reno, 205 F.3d 1130, 1137 (9th Cir. 2000), cert. denied, 532 U.S. 18 904 (2001)) (brackets omitted). Without more, the district court 19 concluded, such conduct cannot be punished without violating the 20 First Amendment. See id. 21 The initial charges raised the possibility, moreover, 22 that under the government's reading of the statute, "a lawyer, 23 acting as an agent of her client, an alleged leader of an FTO, 24 could [be] subject to criminal prosecution as a 'quasi- 25 employee.'" Id. As we shall see, the charges in the superseding 26 indictment do not pose this risk.

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1 A statute is unconstitutionally vague as applied "if it 2 fails to provide people of ordinary intelligence a reasonable 3 opportunity to understand what conduct it prohibits" or "if it 4 authorizes or even encourages arbitrary and discriminatory 5 enforcement." Hill v. Colorado, 530 U.S. 703, 732 (2000); accord 6 United States v. Rybicki, 354 F.3d 124, 132 (2d Cir. 2003) (en 7 banc), cert. denied, 543 U.S. 809 (2004). As a general matter, 8 scienter requirements may "ameliorate[]" concerns of improper 9 notice. See Hill, 530 U.S. at 732. 10 We are satisfied that section 2339A's knowledge-or- 11 intent formulation saves the statute from being 12 unconstitutionally vague as applied here. Unlike the application 13 of section 2339B proposed in the initial indictment, the 14 superseding indictment required the jury to find that the 15 defendants knew or intended the criminal uses to which the 16 conspiracy would put the material support they provided, thereby 17 eliminating concerns about inadequate notice. In other words, if 18 Stewart and Yousry knew that their actions provided material 19 support to a conspiracy to end the cease-fire and thereby unloose 20 deadly acts of terrorism by al-Gama'a and others, then they were 21 on notice that what they were doing was prohibited by a statute 22 that criminalizes the provision of material support "knowing or 23 intending that [such support is] to be used in preparation for, 24 or in carrying out," criminal actions. 18 U.S.C. § 2339A. 25 Stewart and Yousry argue nonetheless that several 26 statutory terms, such as "personnel," are unconstitutionally

49

1 vague as applied to them. They note that "personnel," undefined 2 at the relevant time, applies equally to sections 2339A and 3 2339B, compare id. § 2339A(b)(1) (2000) with id. § 2339B(g)(4) 4 (2000).21 They point out that the district court held this term 5 to be unconstitutionally vague in Sattar I. See 272 F. Supp. 2d 6 at 360. 7 We agree, however, with the district court's conclusion 8 that "[t]he meaning of 'personnel' is clear in the context of 9 § 2339A when applied to personnel who are to be used in 10 preparation for, or in carrying out, specific crimes." Sattar 11 III, 314 F. Supp. 2d at 301 n.11. By applying, in the first

21

At the time of the alleged criminal acts, "personnel" was undefined. In December 2004, the term "personnel" was changed to "personnel (1 or more individuals who may be or include oneself)." See Intelligence Reform and Terrorism Prevention Act, Pub. L. No. 108-458, § 6603(b), 118 Stat. 3638, 3762 (codified at 18 U.S.C. § 2339A(b)(1)). By the same act, the term was defined in more detail for purposes of section 2339B:

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.

Id. § 6603(f),118 Stat. at 3763 (codified at 18 U.S.C.

§ 2339B(h)). This amended definition applies to section 2339B but not to section 2339A.

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1 indictment, the prohibition against providing "personnel" to the 2 conspiracy to a circumstance in which the defendants provided 3 themselves, the government created a situation in which the 4 defendants could be punished for, in effect, providing themselves 5 to speak out in support of the program or principles of a foreign 6 terrorist organization, an activity protected by the First 7 Amendment. See Sattar I, 272 F. Supp. 2d at 359. The more 8 limited charge that they knowingly or intentionally provided 9 Abdel Rahman (as "personnel"), whose voice of command or words of 10 approbation were a means by which al-Gama'a members could prepare 11 for, or carry out, terrorist acts in Egypt, does not carry the 12 same risk with its corresponding constitutional implications. 13 In addition, the heightened scienter requirement in 14 section 2339A constrains prosecutorial discretion, and 15 ameliorates concerns of arbitrary and discriminatory enforcement. 16 Similar scienter requirements have saved other statutes from 17 void-for-vagueness challenges. See, e.g., Hill, 530 U.S. at 732; 18 see also Colautti v. Franklin, 439 U.S. 379, 395 & n.13 (1979) 19 (citing cases); United States v. Curcio, 712 F.2d 1532, 1543 (2d 20 Cir. 1983). 21 2. Nature of the Offense. Stewart and Yousry also 22 contend that Count Four, alleging a conspiracy to violate section 23 2339A, acts impermissibly as a charge of a "multi-level inchoate 24 offense," a "logical absurdity" that "violate[s] due process." 25 Stewart Br. 161-65. The gist of their argument is that the 26 charge effectively criminalizes a "conspiracy to conspire,"

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1 thereby violating due process by extending criminal liability to 2 a degree too remote from any substantive criminal offense to pass 3 constitutional muster. Id. at 165-69. We need not consider this 4 argument;22 Count Five charges the knowing provision of aid -- a 5 substantive, not inchoate, offense -- and Count Four, pursuing a 6 conspiracy to commit that substantive offense, functions as a 7 traditional conspiracy charge. 8 As what seems to us to be a variation on the same 9 theme, Stewart and Yousry assert that the district court erred by 10 "impermissibly dilut[ing]" the proof required for conviction of 11 the Count-Two conspiracy in the context of the material support 12 convictions under section 2339A. Stewart Br. 158. But the 13 government need not have established beyond a reasonable doubt 14 that Stewart or Yousry engaged in a conspiracy to kidnap or 15 commit murder abroad; neither was charged with doing either. 16 Instead, both were charged with and convicted of violating 17 section 2339A, and, as discussed, the evidence is sufficient to 18 sustain the conviction on those charges. Stewart and Yousry do 19 not, presumably because they cannot, suggest that Congress did 20 not have the power to criminalize the relevant underlying 21 conduct.

22

We note nonetheless that the defendants do not provide authority for their argument that a "multi-level inchoate offense" such as a conspiracy to conspire would violate the Due Process Clause.

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1 V. Counts Six and Seven 2 Stewart challenges her convictions on Counts Six and 3 Seven for violating the blanket provisions of 18 U.S.C. § 1001, 4 which subjects to criminal sanctions

5 whoever, in any matter within the 6 jurisdiction of the executive, legislative, 7 or judicial branch of the Government of the 8 United States, knowingly and willfully-- 9 (1) falsifies, conceals, or covers up by 10 any trick, scheme, or device a material fact; 11 (2) makes any materially false, 12 fictitious, or fraudulent statement or 13 representation; or 14 (3) makes or uses any false writing or 15 document knowing the same to contain any 16 materially false, fictitious, or fraudulent 17 statement or entry. . . . 18 18 U.S.C. § 1001(a). Stewart argues that, at worst, she broke a

19 promise, and that the statute criminalizes false statements, not 20 false promises. 21 We conclude otherwise. On May 16, 2000, Stewart signed 22 an affirmation stating that she would ("shall") abide by the 23 SAMs. On May 26, 2000, Stewart submitted the affirmation to the 24 United States Attorney's Office for the Southern District of New 25 York. On May 7, 2001, Stewart signed a revised affirmation to 26 the same effect and telecopied it to the same office. Before, 27 after, and between executing these affirmations, she helped 28 smuggle messages to and from Abdel Rahman in violation of the 29 SAMs.

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1 Stewart at least thrice affirmed "under the penalties 2 of perjury the truth" of certain statements. The May 16, 2000, 3 statement reads in pertinent part:

4 I . . . understand that neither I nor any 5 member of my office shall forward any mail 6 received from inmate Abdel Rahman to a third 7 person. Nor shall I use my meetings, 8 correspondence or phone calls with Abdel 9 Rahman to pass messages between third parties 10 (including, but not limited to, the media) 11 and Abdel Rahman.

12 Stewart May 2000 Aff. (Gov't Ex. 7.) In the May 7, 2001, 13 statement, Stewart affirmed:

14 I . . . specifically understand that the 15 meetings shall not be for the purpose of 16 presenting statements to the defense team for 17 further dissemination to third parties, 18 including the media. I will only allow the 19 meetings to be used for legal discussion 20 between Abdel Rahman and me. 21 22 Stewart May 2001 Aff. (Gov't Ex. 12.)

23 A reasonable factfinder was entitled to conclude that 24 Stewart affirmed under penalty of perjury that she had the then- 25 present intent to have her actions conform to the terms of the 26 SAMs. From Stewart's smuggling messages to and from Abdel 27 Rahman, the factfinder could conclude that the assertion about 28 her intent was knowingly and willfully false when it was made. 29 See United States v. Urum, 148 F.2d 187, 189 (2d Cir. 1945) 30 (concluding that allegation of a false representation as to 31 future use of loan proceeds was "an allegation of a present 32 statement and the assertion of existing intent"); cf. United 33 States v. Shah, 44 F.3d 285, 294 (5th Cir. 1995) (observing that

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1 "a promise may amount to a 'false, fictitious or fraudulent' 2 statement if it is made without any present intention of 3 performance and under circumstances such that it plainly, albeit 4 implicitly, represents the present existence of an intent to 5 perform"). 6 Stewart seeks support for her argument from Williams v. 7 United States, 458 U.S. 279 (1982). There, the Supreme Court 8 reversed a conviction of the defendant under 18 U.S.C. § 1014 for 9 his making of a "false statement" -- a check drawn on an account 10 containing insufficient funds -- for the purpose of influencing 11 the actions of a federally insured institution. But central to 12 the Williams Court's analysis was the proposition that a check, 13 even a bad check, "is not a factual assertion at all." Id. at 14 284. A check "d[oes] not, in terms, make any representation as 15 to the state of [the drawer's] bank balance" but "serve[s] only 16 to direct the drawee banks to pay the face amounts to the bearer, 17 while committing [the drawer] to make good the obligations if the 18 banks dishonor[] the drafts." Id. at 284-85. 19 Williams does not apply to the conduct at issue here. 20 A reasonable jury could have concluded that Stewart's 21 affirmations that she would abide by the SAMs amounted to factual 22 assertions regarding her then-present intent to abide by the 23 SAMs. Based on her repeated affirmations, and her repeated 24 violations of those affirmations, moreover, a reasonable jury 25 could have concluded that at the time Stewart executed and 26 submitted the affirmations at issue, she did not intend to abide

55

1 by them -- in other words, that her representations were 2 knowingly false when made. On this basis, a reasonable jury 3 could have properly concluded that Stewart violated section 1001 4 as charged in Counts Six and Seven.

5 VI. General Challenges to the 6 Validity of the Convictions

7 In addition to their challenges to specific counts in 8 the indictment, Stewart and Sattar make general assertions of 9 error regarding the government's conduct during the course of the 10 prosecution. Stewart argues that she was selectively prosecuted 11 on account of her gender and political beliefs, and both Stewart 12 and Sattar assert that the government's decision to file a 13 superseding indictment following their successful efforts to 14 dismiss several counts of the initial indictment constitutes 15 vindictive prosecution. 16 The defendants also raise various challenges to the 17 district court's case administration. First, they allege a 18 variety of pretrial errors: in the denial of their motions to 19 sever their trial from Sattar's; in the empaneling of an 20 anonymous jury; in the denial of Stewart's motion to suppress 21 certain evidence obtained pursuant to the Foreign Intelligence 22 Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783, 50 23 U.S.C. §§ 1801 et seq. ("FISA"); and in the denial of Stewart's 24 motion for disclosure of whether she, her co-defendants, or 25 others were subject to surveillance by the National Security 26 Agency. The defendants also argue that the district court made

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1 various evidentiary errors. Finally, the defendants argue that 2 the district court erred in addressing post-conviction claims of 3 juror misconduct. 4 A. Selective Prosecution 5 Stewart argues that she was selectively prosecuted on 6 account of her gender and political beliefs in violation of the 7 Equal Protection Clause of the Fourteenth Amendment. This 8 argument requires Stewart to establish that she was "treated 9 differently from other similarly situated individuals" and that 10 "such differential treatment was based on impermissible 11 considerations such as race, religion, intent to inhibit or 12 punish the exercise of constitutional rights, or malicious or bad 13 faith intent to injure [her]." Harlen Assocs. v. Inc. Vill. of 14 Mineola, 273 F.3d 494, 499 (2d Cir. 2001) (internal quotation 15 marks omitted); accord United States v. Fares, 978 F.2d 52, 59 16 (2d Cir. 1992); United States v. Moon, 718 F.2d 1210, 1229 (2d 17 Cir. 1983), cert. denied, 466 U.S. 971 (1984). 18 Stewart compares her treatment with that of Abdel 19 Rahman's former lawyers Ramsey Clark and Abdeen Jabara, who, even 20 though they allegedly violated the same SAMs as she did, were not 21 prosecuted for doing so. Clark's and Jabara's alleged 22 misconduct, however, was different from Stewart's adjudicated 23 misconduct in at least one crucial respect: both Clark and Jabara 24 refused to publicize Abdel Rahman's withdrawal of support for the 25 al-Gama'a cease-fire, something Stewart did at least twice. Like 26 Stewart, Clark spoke to the media on Abdel Rahman's behalf. But

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1 unlike Stewart, the message Clark disseminated in apparent 2 violation of the SAMs -- that Abdel Rahman did not support the 3 formation of a political party in Egypt -- did not have the same 4 potential for inciting violence. For that reason and those set 5 forth by the district court in its decisions addressing the 6 matter, see Sattar V, 395 F. Supp. 2d at 103 (denying selective 7 prosecution claim), cf. Sattar III, 314 F. Supp. 2d at 311-14 8 (denying vindictive prosecution claim), and Order, Sept. 1, 2004 9 (denying selective prosecution claim), Stewart's arguments in 10 this regard are without merit.23 11 B. Vindictive Prosecution 12 Sattar argues that the district court erred in denying 13 his motion to dismiss the Count-Two conspiracy charge in the 14 superseding indictment because the institution of the charge was 15 driven by prosecutorial vindictiveness. This argument is also 16 without merit. 17 The government filed the original five-count indictment 18 in April 2002. In it, Sattar, Stewart, Yousry, and another24

23

In rejecting Stewart's selective prosecution claim in part by comparison with Clark's and Jabara's alleged misbehavior, we do not, of course, suggest our approval of Clark's or Jabara's remarkable alleged courses of conduct. But neither of them was indicted or tried for, let alone convicted of, a crime. We are therefore reluctant to comment on their alleged misdeeds at any length. Stewart cites them as evidence of selective prosecution, however, and we therefore note an important difference between Clark and Jabara's alleged actions and Stewart's -- that she, unlike either of them, was willing to issue a public statement regarding Abdel Rahman's changed position on the cease fire.

24

In addition to the defendants here, the initial indictment also named Yassir Al-Sirri, a/k/a "Abu Ammar" as a (continued...)

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1 were charged with providing, attempting to provide, and 2 conspiring to provide, material support and resources to an FTO 3 in violation of 18 U.S.C. § 2339B. Sattar moved to dismiss these 4 charges on the ground that section 2339B was unconstitutionally 5 vague as applied to the allegations in the indictment. By 6 opinion and order dated July 22, 2003, the district court agreed 7 with Sattar. Sattar I, 272 F. Supp. 2d at 358-61. Following 8 that decision, the government filed a superseding indictment 9 adding a new count charging Sattar with conspiring to murder 10 persons in a foreign country in violation of 18 U.S.C. § 956. 11 Sattar argues that the government's decision to file 12 the superseding indictment and add the charge of violating 13 section 956 "was a retaliatory act . . . motivated by the 14 embarrassment [the government] suffered as a result of the 15 dismissal" of two central counts in the original indictment. 16 Sattar Br. 17. He asserts that an inference of vindictive 17 prosecution is supportable in two ways: First, the addition of 18 Count Two -- which carries a potential sentence of life 19 imprisonment, a longer sentence than that authorized by the 20 dismissed charge pursuant to section 2339B -- "up[ped] the ante" 21 for the consequences of conviction. Sattar III, 314 F. Supp. 2d 22 at 311. Second, the government could have brought the section 23 956 charge in the original indictment, inasmuch as it was based

24

(...continued)

defendant. The superseding indictment named him as an unindicted co-conspirator, instead.

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1 on information known to the government prior to the filing of the 2 initial indictment, but the government declined to do so. 3 "[T]he decision as to whether to prosecute generally 4 rests within the broad discretion of the prosecutor, and a 5 prosecutor's pretrial charging decision is presumed legitimate." 6 United States v. Sanders, 211 F.3d 711, 716 (2d Cir.), cert. 7 denied, 531 U.S. 1015 (2000) (citations and internal quotation 8 marks omitted). Nonetheless, "a prosecution brought with 9 vindictive motive, penalizing those who choose to exercise 10 constitutional rights, would be patently unconstitutional." Id. 11 (internal quotation marks omitted). We will dismiss an 12 indictment if actual vindictiveness has been demonstrated, or if, 13 under the circumstances, "there is a presumption of 14 vindictiveness that has not been rebutted by objective evidence 15 justifying the prosecutor's action." Id. (internal quotation 16 marks omitted). 17 We review a district court's factual findings on 18 prosecutorial vindictiveness for clear error, and its legal 19 conclusions de novo. United States v. Johnson, 171 F.3d 139, 140 20 (2d Cir. 1999) (per curiam). We review a district court's 21 decision denying discovery on claims of prosecutorial 22 vindictiveness for abuse of discretion. Sanders, 211 F.3d at 23 717. 24 "Th[e] need to avoid the appearance of vindictiveness 25 has taken the form of a presumption of prosecutorial 26 vindictiveness . . . , applied when (but only when) the

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1 circumstances of a case pose a "realistic likelihood" of such 2 vindictiveness. United States v. King, 126 F.3d 394, 397 (2d 3 Cir. 1997) (citations and internal quotation marks omitted). The 4 district court found no reason to presume that the actions at 5 issue, which arose in a pretrial setting, were vindictive. See 6 Sattar III, 314 F. Supp. 2d at 311-12. 7 "The circumstances must present a realistic likelihood 8 of vindictiveness that would be applicable in all cases, and any 9 such presumption may be overcome by objective evidence justifying 10 the prosecutor's action." Sanders, 211 F.3d at 717 (citations 11 and internal quotation marks omitted). "[T]his court has 12 consistently adhered to the principle that the presumption of 13 prosecutorial vindictiveness does not exist in a pretrial 14 setting." Paradise v. CCI Warden, 136 F.3d 331, 335 (2d Cir.), 15 cert. denied, 525 U.S. 836 (1998) (internal quotation marks 16 omitted); see also Sanders, 211 F.3d at 717 (same). Sattar 17 provides no reason for us to deviate from this general rule here, 18 and no basis upon which we can conclude that the district court's 19 findings in this respect were clearly erroneous. 20 Sattar's claim of actual, as opposed to presumptive, 21 vindictiveness is also without merit. A finding of actual 22 vindictiveness requires a showing that a "prosecutor's charging 23 decision [is] a 'direct and unjustifiable penalty,' that resulted 24 'solely from the defendant's exercise of a protected legal 25 right.'" Sanders, 211 F.3d at 716-17 (internal citation 26 omitted). The evidence Sattar offers in this regard is that the

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1 government possessed the same information when preparing the 2 original and superseding indictments, that the maximum punishment 3 Sattar faced if convicted under the superseding indictment was 4 greater than that he faced if convicted under the original 5 indictment, and that the superseding indictment was the result of 6 the district court's dismissal of the section 2339B material 7 support charges in the original indictment. We have no warrant 8 to conclude that the district court clearly erred in finding that 9 the charging decision was not vindictive, or that the government 10 was attempting to do anything more than hold Sattar criminally 11 responsible for engaging in the underlying acts that form the 12 basis of the indictment. See Paradise, 136 F.3d at 336. Put 13 another way, it does not follow from the facts Sattar recites 14 that the resulting charge was necessarily brought vindictively; 15 for this reason the district court did not err in concluding 16 otherwise. 17 C. Trial Administration 18 1. Alleged Pre-Trial Errors 19 a. Severance 20 Stewart and Yousry assert that the district court 21 abused its discretion by denying their motions to sever their 22 trial from the trial of Sattar because Sattar was charged with, 23 and convicted of, conspiracy to murder persons in a foreign 24 country -- allegations different from and more serious than those 25 with which Stewart and Yousry were charged. To succeed on this 26 argument, Stewart and Yousry must show that the district court

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1 abused its discretion in this regard and that the resulting 2 prejudice rose to the level of "a miscarriage of justice." See 3 United States v. Yousef, 327 F.3d 56, 150 (2d Cir. 2003). 4 Stewart and Yousry complain primarily that as a result of the 5 district court's denial of their motion for severance, evidence 6 irrelevant to their actions and unfairly prejudicial to their 7 case permeated the trial. They further contend that the volume 8 of limiting instructions given to the jury rendered them 9 effectively useless in attempting to curb any prejudicial effect. 10 But the district court did not abuse its discretion in 11 this respect. Count Two charged Sattar with conspiring to murder 12 persons in a foreign country. Count Five charged Stewart and 13 Yousry with providing and concealing material support to that 14 conspiracy, and Count Four charged them with conspiring to 15 provide and conceal that support. Most of the evidence against 16 Sattar that Stewart and Yousry assert to have been unduly 17 prejudicial to them -- evidence submitted to establish the 18 existence of the Count-Two conspiracy charge against Sattar -- 19 would have been admissible against Stewart and Yousry even had 20 the trial been severed. See Sattar I, 272 F. Supp. 2d at 380-81. 21 This is so because the Count-Two conspiracy was an element of the 22 crimes charged against Stewart and Yousry in Counts Four and 23 Five, and the government would have been entitled, and expected, 24 to elicit relevant evidence regarding its existence. "[T]he fact 25 that testimony against a codefendant may be harmful is not a 26 ground for severance if that testimony would also be admissible

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1 against the moving defendant tried separately." United States v. 2 Rosa, 11 F.3d 315, 341 (2d Cir. 1993), cert. denied, 511 U.S. 3 1042 (1994). 4 To the extent that evidence introduced at trial was not 5 admissible against a particular defendant, the district court 6 gave detailed -- if necessarily voluminous -- curative 7 instructions to the jury. Neither Stewart nor Yousry proffer 8 instructions that should have been given, but were not. Nor do 9 they identify improper curative instructions that were given. 10 This is not a case where "the risk that the jury [would] not, or 11 [could] not, follow instructions [was] so great, and the 12 consequences of failure so vital to the defendant, that the 13 practical and human limitations of the jury system [could not] be 14 ignored." Bruton v. United States, 391 U.S. 123, 135 (1968). 15 Despite the length of the instructions, we presume, as did the 16 district court, see Sattar V, 395 F. Supp. 2d. at 104, that the 17 jurors followed them, see, e.g., Richardson v. Marsh, 481 U.S. 18 200, 206 (1987) (noting that it is an "almost invariable 19 assumption of the law that jurors follow their instructions"); 20 United States v. Salameh, 152 F.3d 88, 116 (2d Cir. 1998), cert. 21 denied, 525 U.S. 1112 (1999) ("Juries are presumed to follow 22 their instructions." (internal quotation marks and brackets 23 omitted)). Neither Stewart nor Yousry provide us with a 24 convincing reason to conclude that the district court abused its 25 discretion in this regard.

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1 b. Empaneling an Anonymous Jury 2 By order dated April 29, 2004, the district court 3 granted the government's motion to empanel an anonymous jury, in 4 light of the substantial publicity surrounding the case and the 5 seriousness and nature of the charges in the indictment, 6 especially the charge that the defendants had attempted "to 7 interfere with the ordered procedures of law enforcement and the 8 judicial process." Order, Apr. 29, 2004. As a general rule, a 9 district court may order the empaneling of an anonymous jury upon 10 "(a) concluding that there is strong reason to believe the jury 11 needs protection, and (b) taking reasonable precautions to 12 minimize any prejudicial effects on the defendant and to ensure 13 that his fundamental rights are protected." United States v. 14 Paccione, 949 F.2d 1183, 1192 (2d Cir. 1991), cert. denied, 505 15 U.S. 1220 (1992). A defendant's apparent "willingness to tamper 16 with the judicial process" will support the use of an anonymous 17 panel. United States v. Aulicino, 44 F.3d 1102, 1116 (2d Cir. 18 1995) (internal quotation marks and ellipses omitted). Where 19 otherwise warranted,

20 the use of an anonymous jury does not 21 infringe a defendant's constitutional rights, 22 so long as the court conducts a careful voir 23 dire designed to uncover any bias as to the 24 issues or the defendants and takes care to 25 give the jurors a plausible and non- 26 prejudicial reason for not disclosing their 27 identities.

28 Id. If "there is evidence to support the district court's 29 finding of reason to believe the jury needs protection," and if

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1 "the court has taken reasonable precautions to minimize any 2 prejudicial effects on the defendant and to ensure protection of 3 his fundamental rights, the decision to empanel an anonymous jury 4 is reviewed only for abuse of discretion." United States v. 5 Thai, 29 F.3d 785, 801 (2d Cir.), cert. denied, 513 U.S. 977 6 (1994). 7 In light of (a) the charges against the defendants, 8 which included a terrorist conspiracy to murder, and Stewart's 9 and Yousry's alleged provision of material support to that 10 conspiracy; (b) the reasonable likelihood that the pervasive 11 issue of terrorism would raise in the jurors' minds a fear for 12 their individual safety; (c) the fact that the charges against 13 Stewart and Yousry were in significant part about their alleged 14 corruption of the judicial process; (d) the widespread pretrial 15 publicity about the case; and (e) the extensiveness of the voir 16 dire administered to the jury by the court, we conclude that the 17 district court did not abuse its discretion. 18 c. Pre-Trial Suppression of Evidence 19 i. Suppression of Evidence Obtained Pursuant to 20 FISA. The defendants argue that evidence obtained from 21 electronic surveillance pursuant to FISA should have been 22 suppressed because such surveillance was improperly instituted 23 for the purpose of a criminal investigation, rather than for the 24 gathering of intelligence, and because FISA was unconstitutional 25 as applied in this case.

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1 By Opinion and Order dated September 15, 2003, the 2 district court denied the defendants' motions to suppress the 3 relevant evidence. Sattar II, 2003 WL 22137012, at *22, 2003 4 U.S. Dist. LEXIS 16164, at *70. At a pretrial hearing held on 5 April 9, 2002, the government informed the district court and the 6 defendants that it had

7 conducted a series of court-authorized 8 electronic surveillance over a period of 9 several years authorized under [FISA], 10 consisting of the electronic surveillance of 11 defendant Sattar's home phone, his computer, 12 [and] fax machine, [and] defendant Yousry's 13 telephone. The government also monitored 14 several prison visits, both audio and video, 15 to Sheik Abdel Rahman over the past several 16 years, one of which involved defendant 17 Stewart in May of 2000.

18 Id. at *2, 2003 U.S. Dist. LEXIS 16164, at *6. A month later, by 19 letter dated May 8, 2002, the government also informed the 20 defendants that "information obtained or derived pursuant to the 21 authority of the FISA was used, and will continue to be used, in 22 connection with the prosecution of [this] case." Id.; see 50 23 U.S.C. § 1806(c) (providing that where the government intends to 24 disclose information obtained from FISA surveillance, the 25 government "shall, prior to the trial . . . notify the aggrieved 26 person and the court . . . that the Government intends to so 27 disclose or so use such information"). 28 As part of its pretrial obligations under FISA, the 29 government

30 made extensive disclosures to the defendants, 31 including over 85,000 audio recordings of 32 voice calls, fax-machine sounds, and

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1 computer-modem sounds obtained through audio 2 surveillance of telephone numbers used by 3 Sattar and Yousry; the FBI's written 4 summaries . . . of approximately 5,300 voice 5 calls that the FBI deemed to contain foreign 6 intelligence information and therefore did 7 not minimize; approximately 150 draft 8 transcripts of voice calls; and approximately 9 10,000 pages of e-mails obtained through 10 electronic surveillance of an e-mail account 11 used by Sattar. The Government has also 12 disclosed certain evidence solely to Stewart 13 and Yousry, including audiotapes of 63 14 telephone conversations between the 15 imprisoned Sheikh Abdel Rahman and his 16 attorneys and Yousry, and audio and video 17 recordings of three prison visits to Sheikh 18 Abdel Rahman by his attorneys and Yousry on 19 February 19, 2000, May 19 and 20, 2000, and 20 July 13 and 14, 2001.

21 Sattar II, 2003 WL 22137012, at *2, 2003 U.S. Dist. LEXIS 16164, 22 at *7. 23 In accordance with the procedure set forth in FISA, see 24 50 U.S.C. § 1806(e), Sattar and Stewart moved to suppress the 25 evidence arising out of the FISA surveillance, and for access to 26 classified information regarding that surveillance. The 27 government argues on appeal, as it did before the district court, 28 that the FISA surveillance at issue was lawfully authorized and 29 conducted. The government moved the district court to order that 30 none of the classified documents or classified information 31 contained therein would need to be disclosed to the defendants. 32 Pursuant to 50 U.S.C. § 1806(f), the government requested that 33 the court conduct an in camera and ex parte review of the 34 materials and proffered an affidavit of then-Attorney General 35 John Ashcroft stating, in relevant part, that "it would harm the

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1 national security of the United States to disclose or have an 2 adversary hearing with respect to materials submitted to the 3 United States Foreign Intelligence Surveillance Court . . . in 4 connection with this matter." Sattar II, 2003 WL 22137012, at 5 *5, 2003 U.S. Dist. LEXIS 16164, at *18. 6 After reviewing the classified materials, the district 7 court concluded that "all of the requirements of FISA were 8 satisfied" and "each of the FISA surveillances was authorized by 9 a FISA Court order that complied with the statutory requirements 10 for such orders and was supported by the statements and 11 certifications required by the statute." Id. at *6, 2003 U.S. 12 Dist. LEXIS 16164, at *21. The district court also concluded 13 that this was "not a case where disclosure [of the classified 14 FISA materials] was necessary or where a review of all of the 15 materials suggested that due process required disclosure to the 16 defendants." Id. at *6, 2003 U.S. Dist. LEXIS 16164, at *22. 17 On appeal, Stewart argues that the materials generated 18 pursuant to the FISA surveillance should have been suppressed 19 because the surveillance was instituted for the purposes of a 20 criminal investigation, not for the purpose of intelligence 21 gathering. In addition, Stewart contends that the FISA review 22 process lacks meaningful judicial review, and that due process 23 required that her counsel have access to the FISA applications 24 and warrants. 25 Stewart's attacks on the constitutionality of the FISA 26 statute are foreclosed by this Court's decision in United States

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1 v. Duggan, 743 F.2d 59 (2d Cir. 1984), which, despite its age, 2 remains binding precedent in this Circuit. There, we concluded 3 that "the procedures fashioned in FISA [are] a constitutionally 4 adequate balancing of the individual's Fourth Amendment rights 5 against the nation's need to obtain foreign intelligence 6 information." Id. at 73. 7 Congress created the FISA system in an attempt to 8 accommodate "the legitimate need of Government for intelligence 9 information and the protected rights of our citizens." United 10 States v. U.S. District Court, 407 U.S. 297, 322-23 (1972). As 11 we have explained, "Congress passed FISA to settle what it 12 believed to be the unresolved question of the applicability of 13 the Fourth Amendment warrant requirement to electronic 14 surveillance for foreign intelligence purposes, and to remove any 15 doubt as to the lawfulness of such surveillance." Duggan, 743 16 F.2d at 73 (internal quotation marks omitted). FISA's primary 17 focus is surveillance for the purpose of gathering foreign 18 intelligence information, which is defined to include 19 "information that relates to, and if concerning a United States 20 person is necessary to, the ability of the United States to 21 protect against [inter alia] international terrorism." 50 U.S.C. 22 § 1801(e)(1). 23 FISA established a court (the "FISA Court") comprised 24 of designated district court judges ("FISA Judges"). The FISA 25 Court has jurisdiction over applications for electronic 26 surveillance relating to the gathering of potential foreign

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1 intelligence information under the procedures set forth in FISA. 2 See id. § 1803. FISA generally permits a federal officer, when 3 authorized by the President of the United States acting through 4 the Attorney General, to obtain from any FISA Judge an order 5 "approving electronic surveillance of a foreign power or an agent 6 of a foreign power for the purpose of obtaining foreign 7 intelligence information." Id. § 1802(b). "[A] group engaged in 8 international terrorism or activities in preparation therefor," 9 is a "foreign power," id. § 1801(a)(4), and an "agent of a 10 foreign power" includes any person who "knowingly engages in 11 sabotage or international terrorism, or activities that are in 12 preparation therefor, for or on behalf of a foreign power" or 13 "knowingly aids or abets any person in [such] conduct," id. 14 § 1801(b)(2)(C) & (E). 15 In order to secure an order authorizing surveillance 16 from a FISA Judge, the officer's application must meet the 17 statutory requirements set forth in 50 U.S.C. § 1804. For 18 example, the application must set forth the identity or 19 description of the target of the surveillance, id. § 1804(a)(2), 20 and a statement of facts and circumstances relied upon to justify 21 the officer's belief that the target is a foreign power or agent 22 of a foreign power and that each facility or location to be 23 subjected to surveillance is being used or is about to be used by 24 the target, id. § 1804(a)(3). Prior to October 26, 2001, such a 25 federal officer was required to certify to the FISA judge that 26 "the purpose" of the FISA surveillance was the interception of

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1 foreign intelligence information. See id. § 1804(a)(7)(B) 2 (2000). In Duggan, we interpreted this provision to mean that 3 the interception of foreign intelligence information must be the 4 "primary objective" of the surveillance. Duggan, 743 F.2d at 77. 5 The statute was changed in the wake of the events of September 6 11, 2001, however, to require only that "a significant purpose" 7 of the surveillance be the interception of such information. See 8 50 U.S.C. § 1804(a)(7)(B) (2003); see also 50 U.S.C. 9 § 1804(a)(6)(B) (2008) (redesignated from (a)(7)). 10 Only after a FISA Judge has been satisfied that the 11 application meets FISA's requirements will he or she authorize 12 the surveillance. To enter an order approving surveillance, the 13 FISA Judge must find that the application was properly filed and 14 properly authorized by the Attorney General; that associated 15 procedures designed to minimize the acquisition and retention of 16 non-publically available information concerning "United States 17 persons" satisfy FISA's requirements, see id. § 1801(h); that the 18 facts set forth in the application provide probable cause to 19 believe that the target is a foreign power or agent of such a 20 power; and that the locations to be subject to surveillance are 21 being used, or are about to be used, by the target, id. 22 § 1805(a). 23 When the application is complete and properly certified 24 by an executive branch official, however,

25 it is, under FISA, subjected to only minimal 26 scrutiny by the courts. Congress deemed it a 27 sufficient check in this regard to require

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1 the FISA Judge (1) to find probable cause to 2 believe that the target of the requested 3 surveillance is an agent of a foreign power; 4 (2) to find that the application is complete 5 and in proper form; and (3) when the target 6 is a United States person, to find that the 7 certifications are not "clearly erroneous." 8 9 Duggan, 743 F.2d at 77. Stewart's argument that FISA does not

10 ensure adequate judicial view is therefore foreclosed by Duggan. 11 See id. at 77 & n.6. 12 Although the purpose of the surveillance must be to 13 obtain foreign intelligence information, "otherwise valid FISA 14 surveillance is not tainted simply because the government can 15 anticipate that the fruits of such surveillance may later be 16 used . . . as evidence in a criminal trial." Id. at 78. To the 17 contrary, the statute specifically contemplates the introduction 18 of FISA surveillance evidence in criminal prosecutions. See 50 19 U.S.C. § 1806(b). As both Congress and this Court have 20 recognized, "in many cases the concerns of the government with 21 respect to foreign intelligence will overlap those with respect 22 to law enforcement." Duggan, 743 F.2d at 78. 23 When such FISA information is introduced in the course 24 of a criminal prosecution, and upon review of a suppression 25 motion, the trial court has the opportunity to review the FISA 26 Court's order, issued pursuant to 50 U.S.C. § 1805, in light of 27 the underlying applications for surveillance, filed pursuant to 28 50 U.S.C. § 1804, in order "to determine whether the surveillance 29 [at issue] was lawfully authorized and conducted." 50 U.S.C. 30 § 1806(f). The district court's review of the FISA Judge's

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1 decision is, like the FISA Judge's decision itself, deferential. 2 "[A] reviewing court [has] no greater authority to second-guess 3 the executive branch's certifications than has the FISA Judge." 4 Duggan, 743 F.2d at 77. 5 FISA applications are likely to contain allegedly 6 sensitive information relating to perceived issues of national 7 security. The applications are required to set forth how and why 8 the Executive Branch knows what it knows, which may include 9 references to covert agents and informers. For this reason, "'ex 10 parte, in camera determination is to be the rule.'" Id. at 78 11 (quoting United States v. Belfield, 692 F.2d 141, 147 (D.C. Cir. 12 1982)). The district court has the "discretion to disclose 13 portions of [relevant materials], under appropriate protective 14 procedures, [but] only if [it] decides that such disclosure is 15 'necessary to make an accurate determination of the legality of 16 the surveillance'" or is otherwise required by due process. Id. 17 (quoting 50 U.S.C. § 1806(f)). 18 Stewart argues on appeal that the "primary purpose" of 19 the FISA wiretapping in this case was to pursue a criminal 20 investigation, not to collect foreign intelligence information. 21 The district court, having reviewed the FISA materials, concluded 22 that "all of the surveillance at issue was conducted with the 23 appropriate purpose," whether with a "primary purpose" or "a 24 significant purpose" to obtain foreign intelligence information. 25 Sattar II, 2003 WL 22137012, at *12-*13, 2003 U.S. Dist. LEXIS 26 16164, at *40-*42.

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1 Upon our own in camera review of the underlying 2 material and the district court's order filed under seal, we are 3 confident that the district court did not err in so concluding. 4 Since the interceptions meet the "primary purpose" test, we, like 5 the district court, need not and do not address Stewart's 6 argument that FISA's new and less demanding "significant purpose" 7 test is unconstitutional. Cf. In re Sealed Case, 310 F.3d 717, 8 735 (FISA Ct. Rev. 2002) (rejecting the "primary purpose" test in 9 favor of a "significant purpose" test). Similarly, based on the 10 relevant evidence which, as adduced at trial, is outlined above, 11 the district court did not err in finding there to be "ample 12 probable cause to believe that the targets of the relevant 13 surveillance -- Sattar, Yousry, and Sheikh Abdel Rahman -- were 14 acting as agents of a foreign power" as defined by FISA, i.e., 15 al-Gama'a, "and that each of the facilities at which the 16 surveillance was directed was being used, or was about to be 17 used, by that target." Sattar II, 2003 WL 22137012, at *7, 2003 18 U.S. Dist. LEXIS 16164, at *24. 19 Stewart also argues that she was an inappropriate 20 target of the surveillance. As the district court noted, 21 however, Stewart was never designated as a target in any of the 22 applications at issue; her alleged co-conspirators were. "Once 23 the proper preconditions are established with respect to a 24 particular target, there is no requirement in FISA that all those 25 likely to be overheard engaging in foreign intelligence 26 conversations be named." Duggan, 743 F.2d at 79. Because

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1 Stewart's co-conspirators were targeted pursuant to proper 2 procedures, the Fourth Amendment did not require that Stewart 3 also be identified or described as a target in order for her 4 intercepted conversations to be used in a criminal prosecution. 5 Id. at 79 n.7. 6 Stewart further argues that the district court erred in 7 declining to disclose FISA materials to her counsel. The 8 district court may order disclosure of FISA materials "under 9 appropriate security procedures and protective orders," but "only 10 where such disclosure is necessary to make an accurate 11 determination of the legality of the surveillance." 50 U.S.C. 12 § 1806(f). When the district court "determines that the 13 surveillance was lawfully authorized and conducted, it shall deny 14 the motion of the aggrieved person except to the extent that due 15 process requires discovery or disclosure." Id. § 1806(g). 16 As we have noted, in these circumstances disclosure is 17 the exception and "'ex parte, in camera determination is [] the 18 rule.'" Duggan, 743 F.2d at 78. The need to disclose materials 19 to defense counsel may arise if the judge determines there to be 20 "potential irregularities such as possible misrepresentation of 21 fact, vague identification of the persons to be surveilled or 22 surveillance records which include a significant amount of 23 nonforeign intelligence information, calling into question 24 compliance with the minimization standards contained in the 25 order." Id. (internal quotation marks and brackets omitted). 26 But Stewart does not point to any case where any court has

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1 ordered disclosure in a situation similar to hers. Upon our own 2 review of the materials, we conclude that there was no error in 3 the district court's determination that disclosure was 4 unnecessary for an accurate determination of the legality of the 5 surveillance at issue or to satisfy the requirements of due 6 process. 7 ii. Disclosure Regarding NSA Surveillance. On 8 June 16, 2006, Stewart moved to compel disclosure as to whether 9 she or any of her co-defendants were subject to surveillance by 10 the National Security Agency ("NSA"). The government filed, ex 11 parte, a classified response to be reviewed in camera. At a 12 hearing on September 25, 2006, the government insisted that its 13 classified submission was properly filed under section 4 of the 14 Classified Information Procedures Act ("CIPA"), Pub. L. No. 15 96-456, 94 Stat. 2025 (1980) (codified at 18 U.S.C. app. 3). The 16 government also argued that none of the defense counsel was 17 properly cleared for access to the information and that, "without 18 going into the details of the classification level of our 19 submission, I don't think any defense counsel would ever have a 20 need to know the details of the terrorist surveillance program, 21 especially in this case." H'g Tr. 13-14, Sept. 25, 2006. 22 Following the hearing and in response to subsequent orders from 23 the district court, the government filed supplemental ex parte 24 confidential responses dated October 6, 2006, October 12, 2006, 25 and October 13, 2006 for in camera review. After additional 26 materials were submitted by the government, the district court

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1 granted, in part, the motion for disclosure, ordering the 2 government to make specified disclosures,25 but otherwise denied 3 the motion. Order, Oct. 17, 2006, at 2. In that public order, 4 the district court noted that it had filed an "ex parte Order 5 under seal containing classified information which explains in 6 detail the reasons for the Court's decision," and found that 7 there was a

8 compelling reason for filing the additional 9 Order ex parte and under seal because it 10 contains classified information that cannot 11 reasonably be segregated from the other 12 material in the Order, and that such a filing 13 is consistent with the Classified Procedures 14 Act and the rights of the defendants. See 15 [United States] v. Yunis, 867 F.2d 617, 622- 16 25 (D.C. Cir. 1989). 17 18 Id.

19 Through CIPA, Congress established procedures for 20 handling classified information in criminal cases. "Classified 21 information" is defined to include "information or material that 22 has been determined by the United States Government pursuant to 23 an Executive order, statute, or regulation, to require protection 24 against unauthorized disclosure for reasons of national 25 security." 18 U.S.C. app. 3 § 1(a). CIPA is "meant to protect 26 and restrict the discovery of classified information in a way

25

The ordered disclosures do not appear to be in the record on appeal. According to Stewart, by letter dated October 13, 2006, the government informed her that certain telephone conversations between a third party and Sattar were intercepted pursuant to a court-authorized Title III warrant in 1994, that these conversations, or the "fruits" of those conversations, were not used as evidence in the present case, and that there was no Brady material. Stewart Br. 211.

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1 that does not impair the defendant's right to a fair trial." 2 United States v. Aref, 533 F.3d 72, 78 (2d Cir. 2008) 3 (alterations and internal quotation marks omitted), cert. 4 denied., 129 S. Ct. 1582 (2009). 5 Section 4 of CIPA establishes procedures for discovery 6 of classified information. It provides:

7 The court, upon a sufficient showing, may 8 authorize the United States to delete 9 specified items of classified information 10 from documents to be made available to the 11 defendant through discovery under the Federal 12 Rules of Criminal Procedure, to substitute a 13 summary of the information for such 14 classified documents, or to substitute a 15 statement admitting relevant facts that the 16 classified information would tend to prove. 17 The court may permit the United States to 18 make a request for such authorization in the 19 form of a written statement to be inspected 20 by the court alone. If the court enters an 21 order granting relief following such an ex 22 parte showing, the entire text of the 23 statement of the United States shall be 24 sealed and preserved in the records of the 25 court to be made available to the appellate 26 court in the event of an appeal.

27 18 U.S.C. app. 3 § 4. 28 This section "clarifies district courts' power under 29 Federal Rule of Criminal Procedure 16(d)(1) to issue protective 30 orders denying or restricting discovery for good cause," which 31 includes "information vital to the national security." Aref, 533 32 F.3d at 78 (internal quotation marks omitted). CIPA does not 33 itself create a government privilege against the disclosure of 34 classified information; it presupposes one. Id. The "most 35 likely source for the protection of classified information lies

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1 in the common-law privilege against disclosure of state secrets." 2 Id. 3 We have recently held that the state-secrets privilege 4 applies to criminal cases, but that "it must give way under some 5 circumstances to a criminal defendant's right to present a 6 meaningful defense." Id. at 79. To determine such 7 circumstances, we have employed the standard first articulated in 8 Roviaro v. United States, 353 U.S. 53 (1957), in the context of 9 the so-called informer's privilege in criminal prosecutions, see 10 Aref, 533 F.3d at 79-80.26 11 First, the district court must determine whether the 12 material in dispute is discoverable, and if so, whether the 13 state-secrets privilege applies. Id. at 80. It applies if "(1) 14 there is 'a reasonable danger that compulsion of the evidence 15 will expose . . . matters which, in the interest of national 16 security, should not be divulged,' and (2) the privilege is 17 'lodged by the head of the department which has control over the 18 matter, after actual personal consideration by that officer.'" 19 Id. at 80 (quoting United States v. Reynolds, 345 U.S. 1, 8, 10 20 (1953)). If the information is discoverable but the privilege 21 applies, then the district court must determine "whether the

26

The privilege is "in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law," and it "recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation." Roviaro, 353 U.S. at 59.

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1 information is helpful or material to the defense, i.e., useful 2 'to counter the government's case or to bolster a defense.'" Id. 3 (citation omitted). In order to be helpful or material, the 4 evidence "need not rise to the level that would trigger the 5 Government's obligation under Brady v. Maryland, 373 U.S. 83 6 (1963), to disclose exculpatory information." Id. 7 We review the district court's decision to issue a 8 protective order under CIPA section 4 and Federal Rule of 9 Criminal Procedure 16(d)(1) for abuse of discretion. Aref, 522 10 F.3d at 80. Similarly, we review for abuse of discretion the 11 district court's finding whether evidence is "helpful" or 12 "material to the defense." Id. 13 At the time of the district court's decision and order, 14 our decision in Aref had not yet issued. As noted in the 15 district court's public order denying the motion to compel, 16 however, the district court relied on an opinion by a sister 17 circuit embracing a test similar to that embraced by the Aref 18 panel. Order, Oct. 17, 2006, at 2 (citing United States v. 19 Yunis, 867 F.2d 617, 622-25 (D.C. Cir. 1989)).27

27

Under the D.C. Circuit's decision in Yunis, first, the district court must determine, in camera and ex parte, whether the information at issue is relevant. Yunis, 867 F.2d at 623.

If irrelevant, the inquiry ends. If relevant, however, the district court must determine whether "the assertion of privilege by the government is at least a colorable one." Id. If the claim is colorable, the court must then determine whether the information is "at least 'helpful to the defense.'" Id. (quoting Rovario, 353 U.S. at 60-61). "Where the government asserts a privilege, a trial court abuses its discretion if it orders disclosure 'absent a showing of materiality.'" Id. at 622. The court in Yunis left open the question of whether otherwise (continued...)

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1 Here, the government has invoked the state-secrets 2 privilege. It asserts that the details of the NSA's operations, 3 including the surveillance vel non of any particular individual 4 or group, implicate national security and are among "the nation's 5 most guarded secrets." Gov't Br. 389-90; id. (quoting Halkins v. 6 Helms, 598 F.2d 1, 7 (D.C. Cir. 1978)). Where evidence is 7 intercepted, the sensitive nature of the information might lie 8 "not so much in the contents of the [information], as in the 9 time, place, and nature of the government's ability to intercept 10 the [information] at all." Yunis, 867 F.2d at 623.28 11 In light of these general concerns and the principles 12 set forth in Yunis and Aref, and based upon our own review of the 13 underlying materials and the district court's sealed order, we 14 are satisfied that the district court did not abuse its 15 discretion or otherwise err in denying Stewart's motion to compel 16 disclosure. 17 We note, as we did in Aref, which postdated the 18 district court's order here, the absence of a formal public 19 "claim of privilege[] lodged by the head of the department which 20 has control over the matter, after actual personal consideration 21 by that officer." Reynolds, 345 U.S. at 7-8; see Aref, 533 F.3d 22 at 80. As in Aref, we conclude that in the pre-Aref context,

27

(...continued)

privileged information is protected from disclosure where such information has "more than theoretical relevance" and is "genuinely helpful to [the] defense." Id. at 625.

28

We make neither reference to nor conclusions regarding the material at issue in the instant case.

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1 such a flaw "is not necessarily fatal," and that "[i]t would 'be 2 of little or no benefit' for us to remand for the purpose of 3 having the department head agree that disclosure of the 4 classified information would pose a risk to national security 5 here." Aref, 533 F.3d at 80. But the absence of the formal 6 claim is not a trivial matter. We do not demean it. We expect 7 that, in light of the holding in Aref, we will not need to 8 address this issue in appeals from future prosecutions in which 9 the state-secrets privilege is invoked as the government is now 10 well-informed of this obligation. Cf. id. ("Based on our holding 11 today . . . we trust that this issue will not arise in future 12 CIPA cases."). 13 We reject Stewart's claim that the district court erred 14 in reviewing materials ex parte and in camera. As we noted in 15 Aref, "[b]oth CIPA section 4 and Rule 16(d)(1) authorize ex parte 16 submissions. . . . When the 'government is seeking to withhold 17 classified information from the defendant, an adversary hearing 18 with defense knowledge would defeat the very purpose of the 19 discovery rules.'" Aref, 533 F.3d at 81. 20 The CIPA procedures followed by the district court 21 place all parties involved (except perhaps the government) at a 22 substantial disadvantage: defendants are hampered in contesting 23 the assertions that are being made to the court by the 24 government; district courts and courts of appeals are deprived of 25 the opportunity for an adversarial proceeding upon which they are 26 typically dependent in attempting fairly and properly to resolve

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1 disputes; and the public, as well as the litigants, are deprived 2 of the assurances that come with public scrutiny of the work of 3 the courts. The procedures are also, of course, subject to abuse 4 by the executive. But a method for protection of classified 5 material is necessary, and these procedures have been established 6 by Congress and held to be constitutional. We, as did the 7 district court, therefore accept them as a necessary, if 8 imperfect, accommodation of the varied interests implicated. 9 2. Alleged Trial Errors. Both Sattar and Yousry 10 challenge various evidentiary rulings made by the district court. 11 Sattar argues that the court abused its discretion by admitting a 12 book by Taha and a videotape of Taha, Osama Bin Laden, and other 13 al-Gama'a members encouraging violence, and by excluding news 14 footage purporting to depict Israeli violence against Palestinian 15 demonstrators. In addition, Yousry challenges the exclusion of 16 several statements he made to FBI agents. 17 We review a district court's evidentiary rulings for 18 abuse of discretion. See United States v. Kelley, 551 F.3d 171, 19 174 (2d Cir. 2009) (per curiam); United States v. Anglin, 169 20 F.3d 154, 162 (2d Cir. 1999). Here, the district court did not 21 abuse its discretion with respect to any such rulings. 22 We are guided by certain basic principles established 23 by the Federal Rules of Evidence -- that, as a general rule, 24 "[a]ll relevant evidence is admissible," Fed. R. Evid. 402, but 25 that even relevant evidence, although admissible, may be excluded 26 by the district court "if its probative value is substantially

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1 outweighed by the danger of unfair prejudice, confusion of the 2 issues, or misleading the jury, or by considerations of undue 3 delay, waste of time, or needless presentation of cumulative 4 evidence," Fed. R. Evid. 403. "A district court is obviously in 5 the best position to do the balancing mandated by Rule 403." 6 Salameh, 152 F.3d at 110. "We will second-guess a district court 7 only if there is a clear showing that the court abused its 8 discretion or acted arbitrarily or irrationally." Id. (internal 9 quotation marks omitted); accord United States v. Szur, 289 F.3d 10 200, 217 (2d Cir. 2002). 11 Taha's book was relevant and admissible as evidence of 12 the existence of the Count-Two conspiracy to murder persons in a 13 foreign country. The Bin Laden video was similarly admissible, 14 and relevant to Taha's intent to murder or kidnap. The district 15 court did not err in failing to find that the evidence was unduly 16 prejudicial. 17 It was also within the district court's discretion to 18 exclude both the news video, which it found to be of minimal 19 relevance yet highly prejudicial and confusing, and Yousry's 20 statements to the FBI, which it found to be essentially 21 duplicative of Yousry's own testimony. 22 The district court made a "conscientious assessment of 23 whether unfair prejudice substantially outweigh[ed] probative 24 value," Salameh, 152 F.3d at 110 (internal quotation marks 25 omitted), and did not otherwise abuse its discretion in making

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1 this assessment. We therefore will not disturb its judgments on 2 these grounds. 3 3. Allegations of Juror Misconduct. It was brought to 4 the district court's attention after the jury rendered its 5 verdict that a juror, referred to by the parties as "Juror # 39," 6 had come forward with allegations concerning improprieties during 7 the jury's deliberations. The defendants requested that the 8 district court "'follow up' and conduct an inquiry" into these 9 allegations. Sattar IV, 395 F. Supp. 2d at 74-78. By written 10 opinion, the district court denied the request. Id. Sattar 11 argues on appeal that the district court's actions were an abuse 12 of its discretion, insisting that the court should have met, 13 post-verdict, with Juror Number 39 to conduct an inquiry. We 14 disagree. 15 The district court properly construed the request as 16 one for an evidentiary hearing, and concluded that there was no 17 "clear, strong, substantial and incontrovertible evidence . . . 18 that a specific, non-speculative impropriety has occurred," 19 United States v. Ianiello, 866 F.2d 540, 543 (2d Cir. 1989), 20 especially in light of the fact that the juror had "several 21 opportunities to communicate directly with the court" regarding 22 any potential improprieties, but failed to do so, Jacobson v. 23 Henderson, 765 F.2d 12, 15 (2d Cir. 1985). As the district court 24 explained, "the fact that Juror # 39 had direct access to the 25 Court and did not complain of any problems supports the 26 conclusion that these allegations are post hoc efforts caused by

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1 dissatisfaction that do not require further post-verdict 2 inquiry." Sattar IV, 395 F. Supp. 2d at 77. We agree. 3 4. Cumulative Error Doctrine. Yousry also argues on 4 appeal that we should reverse under the cumulative error 5 doctrine. But the defendants have not identified any error in 6 the district court's rulings, "and the accumulation of non-errors 7 does not warrant a new trial." United States v. Lumpkin, 192 8 F.3d 280, 290 (2d Cir. 1999). 9 VII. Propriety of the Sentences 10 The government appeals from the sentences imposed on 11 the defendants, asserting that they are unreasonable and unduly 12 lenient. The government's principal brief was submitted prior to 13 the Supreme Court's decisions in Gall v. United States, 128 S. 14 Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 15 (2007), which, as recognized by this Circuit in its en banc 16 decision in United States v. Cavera, 550 F.3d 180 (2d Cir. 2008), 17 have significantly altered the landscape of sentencing 18 jurisprudence. The Supreme Court issued both Gall and Kimbrough 19 before the government filed its reply brief and oral argument 20 took place, but not before this Circuit had spoken in Cavera.29

29

As noted in this case's caption, this appeal was argued on January 29, 2008. On December 12, 2007, approximately one month prior thereto, a majority of the active judges of this Court voted to vacate the initial three-judge panel's decision in Cavera, see 505 F.3d 216 (2d Cir. 2007), and to rehear the case en banc. As Cavera preceded this case and would address many issues critical to the resolution of this appeal, and as noted in footnote [*], we deemed it prudent to stay our resolution of this case pending this Court's en banc resolution of Cavera, despite (continued...)

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1 A. Standard of Review 2 The principles that guide our review of the district 3 court's sentences are, "at first glance, beguilingly simple." 4 Cavera, 550 F.3d at 188. Generally, we review for abuse of 5 discretion. Id. at 189. That "deferential" scrutiny 6 "encompasses two components: procedural review and substantive 7 review." Id. 8 1. Procedural Review. We first determine whether the 9 sentence was procedurally reasonable. See id. Ordinarily, the 10 district court must first correctly calculate the appropriate 11 range set forth by the United States Sentencing Guidelines. Id. 12 at 190. Then it "must form its own view of the nature and 13 circumstances of the offense and the history and characteristics 14 of the defendant," id. at 188, as mandated and guided by 18 15 U.S.C. § 3553(a)(1).30 In this context, "we review factual

29

(...continued)

the unfortunate delay involved. The en banc opinion issued on December 4, 2008.

30

Section 3553(a) provides, in pertinent part:

The 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 (continued...)

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1 findings for clear error and the court's interpretation of the 2 Sentencing Guidelines de novo." United States v. Jeffers, 329 3 F.3d 94, 97 (2d Cir. 2003); see also Gall, 128 S.Ct. at 597 4 (stating that a court procedurally errs when it "select[s] a 5 sentence based on clearly erroneous facts"). In imposing the 6 chosen sentence, the court must "adequately . . . explain [that]

30 (...continued)

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 [and recommended by the Sentencing Guidelines];

(5) any pertinent policy statement . . .

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.

18 U.S.C. § 3553(a).

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1 sentence," including "any deviation from the Guidelines range." 2 Cavera, 550 F.3d at 190. 3 District courts are "generally free to impose sentences 4 outside the recommended [Guidelines] range" but "must consider 5 the extent of the deviation and ensure that the justification is 6 sufficiently compelling to support the degree of the variance." 7 Id. at 189 (citations and internal quotation marks omitted). 8 Thus, a district court "must satisfy us that it has 9 'considered the parties' arguments' and that it has a 'reasoned 10 basis for exercising [its] own legal decisionmaking authority.'" 11 Id. at 193 (quoting Rita v. United States, 551 U.S. 338, 356 12 (2007)) (brackets in Cavera). When a court commits "significant 13 procedural error," we may "remand to the district court so that 14 it can either explain what it was trying to do, or correct its 15 mistake and exercise its discretion anew . . . rather than 16 . . . proceed[ing] to review the sentence for substantive 17 reasonableness." Id. at 190 (citations and internal quotation 18 marks omitted). 19 2. Substantive Review. Once we are satisfied that a 20 sentence was procedurally proper, we then review the district 21 court's determination for substantive reasonableness, "tak[ing] 22 into account the totality of the circumstances, giving due 23 deference to the sentencing judge's exercise of discretion, and 24 bearing in mind the institutional advantages of district courts." 25 Id. at 190. Our role is no more than to "patrol the boundaries 26 of reasonableness." Id. at 191. Indeed, we "must defer heavily

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1 to the expertise of district judges," id. at 193, and will "set 2 aside a district court's substantive determination only in 3 exceptional cases where the trial court's decision cannot be 4 located within the range of permissible decisions," id. at 189 5 (internal quotation marks and emphasis omitted). 6 We do not "presume that a non-Guidelines sentence is 7 unreasonable," nor do we "require 'extraordinary' circumstances 8 to justify a deviation from the Guidelines range." Id. at 190 9 (quoting Gall, 128 S. Ct. at 595). In evaluating a sentence's 10 substantive reasonableness, "we may take the degree of variance 11 into account and consider the extent of a deviation from the 12 Guidelines.'" Id. We may "consider whether the factor, as 13 explained by the district court, can bear the weight assigned it 14 under the totality of circumstances in the case." Id. at 191. 15 "[A] major departure should be supported by a more significant 16 justification than a minor one." Gall, 128 S. Ct. at 597. "But 17 we must not employ a rigid mathematical formula that uses the 18 percentage of a departure as the standard for determining the 19 strength of the justifications required for a specific sentence." 20 Cavera, 550 F.3d at 190 (internal quotation marks omitted). 21 Some decisions by the district court may be entitled to 22 more deference than others. For example, as both the Supreme 23 Court and we have noted, variations from the Guidelines "may 24 attract greatest respect when the sentencing judge finds a 25 particular case outside the heartland to which the Commission 26 intends individual Guidelines to apply." Kimbrough, 128 S. Ct at

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1 574-75 (internal quotation marks omitted); accord Cavera, 550 2 F.3d at 192. When, on the other hand, the variation is based 3 upon a general disagreement with the Guidelines' applicability in 4 a "mine-run case," then "closer review may be in order." 5 Kimbrough, 128 S. Ct at 575. 6 But such "closer review" is less appropriate where the 7 Guideline in question is not based on empirical data and national 8 history. The issuance of that sort of Guideline "do[es] not 9 exemplify the Commission's exercise of its characteristic 10 institutional role." Id. "[A] categorical disagreement with and 11 variance from [such a] Guideline[]," or, at least from the crack 12 cocaine Guidelines, "is not suspect." Spears v. United States, 13 129 S. Ct. 840, 843 (2009) (per curiam). 14 The Supreme Court has yet to address fully the contours 15 of the "respect" that should be afforded to "an 'inside the 16 heartland' departure," id., from Guidelines created by the 17 Commission pursuant to its characteristic institutional role. 18 Such a departure would "necessarily [be] based on a policy 19 disagreement with the Guidelines" and would "necessarily 20 disagree[] [with the Guidelines] on a 'categorical basis.'" Id. 21 We have recognized, however, that "some Guidelines enhancements 22 and reductions apply without modulation to a wide range of 23 conduct." Cavera, 550 F.3d at 192. Thus, "a district court may 24 find that even after giving weight to the [factors that drive the 25 enhancement or reduction] there is [still] a wide variety of 26 culpability amongst defendants and, as a result, impose different

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1 sentences based on the factors identified in § 3553(a)." Id. Of 2 course, irrespective of whether the conduct is found to be inside 3 or outside the "heartland," the "district court must explain its 4 reasons for its chosen sentence." Id.31 5 Affording greater discretion to the district courts may 6 result in greater apparent disparities in sentences. But "the 7 Supreme Court has made clear its view that disparities in 8 sentences imposed by different district judges are more likely to 9 reflect justified differences than are those arising from 10 differences of opinion among appellate panels." Cavera, 550 F.3d 11 at 193. 12 B. Application to This Case 13 The government's principal claim of error on appeal is 14 that the district court abused its discretion by imposing 15 unreasonably lenient sentences. The government also argues that 16 the district court erred as a matter of law by failing to apply 17 the Guidelines terrorism adjustment, U.S.S.G. § 3A1.4, to 18 Yousry's offense level. 19 1. Yousry's Sentence. The district court initially 20 calculated Yousry's Guidelines range based on a total offense 21 level of 28 and a criminal history category of I, for a range of 22 78 to 97 months. According to the government, Yousry's

31

As is discussed in more detail below, the district court found that the terrorism enhancement did not apply to Yousry's conduct, and that his conduct fell outside the heartland of material support for terrorist activity crimes. The district court found Sattar's and Stewart's conduct to merit the terrorism enhancement, but, at least for Stewart, found the case to be an unusual one for the enhancement.

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1 applicable Guidelines range should have been enhanced in 2 accordance with the terrorism enhancement provide by the 3 Guidelines, U.S.S.G. § 3A1.4. The district court concluded to 4 the contrary that the terrorism enhancement did not apply to 5 Yousry because he did not act with the requisite state of mind. 6 Based on the district court's findings, we agree with its 7 conclusion. 8 Upon consideration of the various factors set forth in 9 section 3553(a), the district court concluded that a significant 10 downward variance32 was appropriate, and ultimately sentenced 11 Yousry to a non-Guidelines sentence of 20 months of imprisonment, 12 followed by 2 years of supervised release. 13 a. Guidelines Calculations 14 We review the district court's interpretation of the 15 Guidelines de novo, and the district court's findings of fact for 16 clear error. United States v. Legros, 529 F.3d 470, 474 (2d Cir. 17 2008). We interpret the Guidelines as though they were a 18 statute, giving the words used their common meaning. United

32

We distinguish between "a 'variance' from the advisory Guidelines" and "a 'departure' within the Guidelines." Irizarry v. United States, 128 S.Ct. 2198, 2204 (2008) (Breyer, J., dissenting) (emphasis in original). As the Supreme Court noted in Irizarry, "'[d]eparture' is a term of art under the Guidelines and refers only to non-Guidelines sentences imposed under the framework set out in the Guidelines." Id. at 2202. In contrast, a variance is a modification of the applicable Guidelines sentence "that a District Court may find justified under the sentencing factors set forth in 18 U.S.C. [§ 3553(a)]." Id. at 2203.

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1 States v. Kirvan, 86 F.3d 309, 311 (2d Cir. 1996). Section 2 3A1.4, the so-called "terrorism enhancement," provides:

3 (a) If the offense is a felony that 4 involved, or was intended to promote, a 5 federal crime of terrorism, increase by 12 6 levels; but if the resulting offense level is 7 less than level 32, increase to level 32.

8 (b) In each such case, the defendant's 9 criminal history . . . shall be Category VI. 10 11 U.S.S.G. § 3A1.4. The application notes incorporate 18 U.S.C.

12 § 2332b(g)(5) by reference. See id. cmt. n.1. That section

13 defines a "Federal crime of terrorism" as: 14 15 an offense that-- 16 (A) is calculated to influence or affect 17 the conduct of government by intimidation or 18 coercion, or to retaliate against government 19 conduct; and 20 (B) is a violation of [any one of many 21 statutes, including 18 U.S.C. § 2339A, 22 relating to the provision of material support 23 to terrorists, and 18 U.S.C. § 956(a)(1), 24 relating to conspiracies to murder persons 25 abroad].

26 18 U.S.C. § 2332b(g)(5). The conventional meaning of 27 "calculated" is "devised with forethought." II Oxford English 28 Dictionary 777 (2d ed. 1999). Therefore, if a defendant's 29 purpose in committing an offense is to "influence or affect the 30 conduct of government by intimidation or coercion, or to 31 retaliate against government conduct," the first requirement of 32 section 2332b(g)(5)(A) is satisfied. If, however, there is no 33 evidence that the defendant "sought to influence or affect the 34 conduct of the government," the crime is not a federal crime of

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1 terrorism. See United States v. Leahy, 169 F.3d 433, 446 (7th 2 Cir. 1999). 3 The enhancement is not limited, however, to offenses 4 that are themselves federal crimes of terrorism. By including 5 the "intended to promote" language, the drafters of the Guideline 6 "unambiguously cast a broader net." United States v. Mandhai, 7 375 F.3d 1243, 1247 (11th Cir. 2004), cert. denied, 549 U.S. 923 8 (2006). The criminal conduct at issue need not itself meet the 9 statutory definition of a federal crime of terrorism if "a goal 10 or purpose [of the defendant's act] was to bring or help bring 11 into being a crime listed in 18 U.S.C. 2332b(g)(5)(B)." Id. at 12 1248; accord United States v. Arnaout, 431 F.3d 994, 1001-02 (7th 13 Cir. 2005). 14 The district court declined to apply the terrorism 15 enhancement to Yousry's sentence. The court explained:

16 This is a motivational requirement and 17 focuses on the defendant's purpose. The 18 government has conceded the lack of 19 motivation or purpose and has failed to show 20 that the defendant's offenses were calculated 21 to influence or affect the conduct of 22 government by intimidation or coercion or to 23 retaliate against government action.

24 Sent'g Tr. 143-44; see 18 U.S.C. § 2332b(g)(5)(A) (defining 25 "federal crime of terrorism"). The government does not challenge 26 this finding, which we conclude to be consistent with the record 27 and not clearly erroneous. 28 Nonetheless, the government argues that the enhancement 29 is appropriate despite the fact that Yousry has committed neither 30 a federal crime of terrorism nor any other crime with the intent

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1 to promote such a crime. According to the government, the 2 enhancement applies because Yousry's offense was "a felony that 3 involved . . . a federal crime of terrorism." U.S.S.G. § 3A1.4 4 (emphasis added). But under the "involved" prong of section 5 3A1.4, the enhancement would be applicable to Yousry only if he 6 himself had committed a federal crime of terrorism. See Arnaout, 7 431 F.3d at 1001 ("The ordinary and plain meaning of 'involved' 8 means 'to include.'"); United States v. Graham, 275 F.3d 490, 516 9 (6th Cir. 2001), cert. denied, 535 U.S. 1026 (2002) ("[W]e 10 believe that in the context at hand, the word 'involved' 11 signifies that a defendant's offense included a federal crime of 12 terrorism; in other words, that a defendant committed, attempted, 13 or conspired to commit a federal crime of terrorism as defined in 14 18 U.S.C. § 2332b(g)(5)."). And, as the Fourth Circuit has 15 recognized, commission of a federal crime of terrorism, which 16 would trigger the "involved" prong of the enhancement, 17 incorporates "a specific intent requirement, namely, that the 18 underlying felony was 'calculated to influence or affect the 19 conduct of government by intimidation or coercion, or to 20 retaliate against government conduct.' 18 U.S.C. § 2332b(g)(5)." 21 United States v. Chandia, 514 F.3d 365, 376 (4th Cir. 2008). So 22 the problem for the government remains: there is no evidence that 23 Yousry himself sought to influence or affect the conduct of a 24 government. The enhancement therefore does not apply under the 25 "involved" prong. See Leahy, 169 F.3d at 446.

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1 The government maintains that any motivational 2 requirement imposed by the terrorism enhancement can be imputed 3 to Yousry from his co-conspirators' relevant conduct under 4 section 1B1.3(a) of the Guidelines. It provides, in relevant 5 part:

6 [A]djustments in Chapter Three [including the 7 Terrorism Enhancement] shall be determined on 8 the basis of the following: 9 (1)(A) all acts and omissions committed, 10 aided, abetted, counseled, commanded, 11 induced, procured, or willfully caused by the 12 defendant; and 13 (B) in the case of a jointly undertaken 14 criminal activity (a criminal plan, scheme, 15 endeavor, or enterprise undertaken by the 16 defendant in concert with others, whether or 17 not charged as a conspiracy), all reasonably 18 foreseeable acts and omissions of others in 19 furtherance of the jointly undertaken 20 criminal activity, that occurred during the 21 commission of the offense of conviction, in 22 preparation for that offense, or in the 23 course of attempting to avoid detection or 24 responsibility for that offense . . . .

25 U.S.S.G. § 1B1.3(a). The government asserts that it was 26 reasonably foreseeable to Yousry that his co-conspirators were 27 acting in a manner "calculated to influence or affect the conduct 28 of government," so that the requirement of section 2332b(g)(5)(A) 29 is satisfied as to him. 30 But sections 1B1.3(a)(1)(A) and (B) apply to "acts and 31 omissions," while, as noted above, section 2332b(g)(5)(A) 32 describes a motivational requirement, a "specific intent." 33 Chandia, 514 F.3d at 376. We cannot conflate Yousry's acts with 34 his co-defendants' mental states. As one member of this Court 35 has pointed out, "We have never regarded mens rea as an 'act' of

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1 the defendant for purposes of the relevant conduct guideline, nor 2 should we." United States v. McHugh, 122 F.3d 153, 158 (2d Cir. 3 1997) (Newman, J., concurring). "Section 1B1.3(a)(1)(A) permits 4 selection of an enhanced guideline for 'acts' committed by the 5 defendant. . . . The natural meaning of 'act' connotes conduct, 6 and the meaning of the guideline should not be strained to 7 include state of mind." Id. Here, too, the terrorism 8 enhancement's motivational requirement, as incorporated by 9 reference to section 2332b(g)(5)(A), is not an "act" or 10 "omission" under section 1B1.3(a)(1)(B). The enhancement is 11 therefore not applicable. 12 We have examined the other arguments made by the 13 government in support of its expansive reading of the "involved" 14 prong of the terrorism enhancement and we find them to be 15 similarly without merit. 16 b. Section 3553(a) Factors 17 We conclude, then, that the district court properly 18 calculated Yousry's Guidelines range to be 78 to 97 months. We 19 must therefore determine in light of that range and the totality 20 of the circumstances whether Yousry's sentence of 20 months of 21 imprisonment, imposed following the district court's section 22 3553(a) inquiry, was substantively unreasonable. 23 We need not outline again the nature of the crimes of 24 which Yousry was convicted. We focus instead on the reasons 25 given by the district court in support of its downward variance.

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1 First, the court found that Yousry's conduct was 2 "unusual and f[e]ll outside the heartland of material support for 3 terrorist activity." Sent'g Tr. 150. "[A] district court's 4 decision to vary from the Guidelines 'may attract greatest 5 respect when the sentencing judge finds a particular case outside 6 the "heartland" to which the Commission intends individual 7 Guidelines to apply.'" Cavera, 550 F.3d at 192 (quoting 8 Kimbrough, 128 S. Ct. at 574-75). We perceive no basis for 9 concluding that the district court erred in deciding that to be 10 the case with respect to Yousry, particularly because he was 11 acting as a translator, not a lawyer or other professional. 12 Second, the district court found that "no actual harm 13 to victims occurred" although the court was "well aware that such 14 harm is not required and that if such harm occurred the guideline 15 range would be higher." Sent'g Tr. 150. We conclude that it was 16 not unreasonable for the district judge to decide that the fact 17 that no injury occurred in the case mitigated the gravity of 18 Yousry's offense.33 The criminal law often punishes the

33

As a procedural matter, we conclude that a district court may rely on the fact that no harm resulted from the criminal act at issue. The weight that such a factor can bear in any particular instance, however, is an analytically separate, and substantive, question. As is made clear by the discussion below, we conclude that the district court did not procedurally err by considering the absence of harm as one factor relevant to the proper sentence of each defendant. We also conclude that both Sattar's and Yousry's sentences are substantively reasonable -- i.e., that the factors identified by the district court can bear the weight assigned to them. Because we vacate Stewart's sentence as procedurally unreasonable, however, we do not address whether the factors identified by the district court, including the apparent lack of substantial harm caused by her criminality, (continued...)

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1 substantive commission of a crime more severely than an attempt 2 to commit the same crime, even when that which separates an 3 attempt from the substantive commission of an offense is not 4 culpability but fortuity. Fortuitous events are not 5 categorically irrelevant to the determination of a just 6 punishment nor is their consideration necessarily inappropriate. 7 As the Supreme Court has recently noted, although "[i]t is 8 unusual to impose criminal punishment for the consequences of 9 purely accidental conduct[,] it is not unusual to punish 10 individuals for the unintended consequences of their unlawful 11 acts." See, e.g., Dean v. United States, 129 S. Ct. 1849, 1857- 12 58 (2009); id. at 1852 (concluding that a defendant who carried a 13 firearm during and in relation to a bank robbery in violation of 14 18 U.S.C. § 924(c)(1)(A) is subject to a 10 year mandatory 15 minimum pursuant to 18 U.S.C. § 924(c)(1)(A)(iii) because his 16 "firearm [was] discharged" in the course of the robbery, even 17 though "the gun [went] off accidentally," was not pointed at 18 anyone when it discharged, and nobody was hurt). 19 Third, the court noted that although Yousry's offenses 20 were "plainly serious," his "role in the offenses was subservient 21 to the others involved" in the conspiracy. Sent'g Tr. 150. The 22 Guidelines were "intended to eliminate national disparity," but 23 "[w]e do not, as a general matter, object to district courts'

33

(...continued)

can bear the weight assigned them. We note, however, our general view that a district court should be cautious in determining the significance of the fact that no harm may have occurred where a defendant intended such harm.

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1 consideration of similarities and differences among co-defendants 2 when imposing a sentence." United States v. Wills, 476 F.3d 103, 3 109, 110 (2d Cir. 2007) (emphasis omitted), abrogated on other 4 grounds by Kimbrough, 128 S.Ct. at 574-75, as recognized in 5 Cavera, 550 F.3d at 191; accord United States v. Williams, 524 6 F.3d 209, 216 (2d Cir. 2008). We also defer to the district 7 court's conclusion that Yousry's conduct was less culpable than 8 that of his co-conspirators. On this basis, we conclude that the 9 district court did not err by giving weight to this factor. 10 Fourth, the district court found that Yousry "did not 11 engage in the offenses for profit and . . . did not support or 12 believe in the use of violence to achieve what he wanted." 13 Sent'g Tr. 150. These facts mitigate the gravity of the conduct 14 at issue. They also affect consideration of the "history and 15 characteristics of the defendant" and the need to "protect the 16 public from further crimes of the defendant" and to "afford 17 adequate deterrence." 18 U.S.C. § 3553(a). The court concluded 18 that a substantial downward variance was thus justified on the 19 grounds that a lesser degree of punishment than otherwise called 20 for would be sufficient for purposes of deterrence and the 21 protection of the public. As the Gall Court noted, a district 22 court is well-situated to make determinations about the 23 "character of the defendant" and whether, given such a character, 24 the defendant is more or less likely "to return to criminal 25 behavior" or constitute "a danger to society." Gall, 128 S. Ct. 26 at 600-01.

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1 The district court did not err in finding that Yousry 2 was not motivated by potential profit and did not believe in the 3 use of violence. Nor did it err in considering these factors 4 while fashioning a non-Guidelines sentence for him. In 5 evaluating culpability, we cannot discount the relevance of the 6 defendant's motivations -- i.e., whether mercenary, see, e.g., 18 7 U.S.C. § 1958 (murder for hire), or born from a commitment to the 8 use of violence. The district court acted well within its 9 discretion in deciding that Yousry was both less dangerous and 10 more easily deterred than had he been acting on a for-hire basis 11 or committed to the use of violence for political ends. 12 Fifth, the district court found that Yousry's 13 conviction made it "doubtful that the defendant could pursue" his 14 career as an academic or translator, and therefore that the need 15 for further deterrence and protection of the public is lessened 16 because the conviction itself "already visits substantial 17 punishment on the defendant." Sent'g Tr. 151. The district 18 court is specifically required by section 3553(a) to consider the 19 "just punishment for the offense." 18 U.S.C. § 3553(a)(2)(A). 20 It is difficult to see how a court can properly calibrate a "just 21 punishment" if it does not consider the collateral effects of a 22 particular sentence. Upon careful review of the record and the 23 reasons given by the court, we are convinced that the court did 24 so appropriately. 25 Sixth, the district court found that Yousry provided 26 "extensive . . . cooperation" to the government following the

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1 terrorist attacks of September 11, 2001. Sent'g Tr. 151. The 2 court concluded that this cooperation "demonstrates a willingness 3 to help law enforcement and reduces the need for rehabilitation 4 and deterrence." Id. We defer to the district court's 5 evaluation of the extent of Yousry's cooperation. And of course, 6 use of a defendant's cooperation to justify significant variances 7 or departures from the otherwise applicable Guidelines 8 calculations is commonplace. The government argues that Yousry's 9 assistance was not as extensive as the district court found it to 10 be, but we have been given no cause to question the court's 11 relevant findings of fact or the manner in which it accounted for 12 them in sentencing. 13 Seventh, the court found that Yousry "will not be in a 14 situation to commit the offenses of conviction again," because 15 "it is unlikely that he will ever be able to serve as an 16 interpreter in an official capacity." Id. We defer to this 17 finding, too. It is not error for a district court to evaluate, 18 based on the defendant's individual circumstances, the extent of 19 punishment "necessary to deter [him] from engaging in future 20 criminal conduct or to protect the public from his future 21 criminal acts." Gall, 128 S. Ct. at 602; see 18 U.S.C. 22 § 3553(a)(2)(B) & (C). 23 The district court did not, of course, assign precise 24 weights to particular factors. Doing so would presuppose "the 25 existence of some ascertainable method of assigning percentages 26 to various justifications," and would constitute a species of

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1 "mathematical approach" which has been expressly disavowed by the 2 Supreme Court as "a classic example of attempting to measure an 3 inventory of apples by counting oranges." Gall, 128 S. Ct. at 4 596. 5 In evaluating the ultimate substantive reasonableness 6 of Yousry's sentence, we must determine, under the totality of 7 the circumstances, whether these various factors can "bear the 8 weight" assigned to them by the district court. We are satisfied 9 that they can. We are equally satisfied that the district court 10 "consider[ed] the extent of the deviation and ensure[d] that the 11 justification [was] sufficiently compelling to support the degree 12 of variance." Id. at 597. 13 In conducting our review, we are further satisfied that 14 the district court did not ignore the Guidelines or "treat them 15 merely as a body of casual advice." Cavera, 550 F.3d at 189 16 (internal quotation marks omitted). Even were we inclined to 17 think that the district court did not appreciate the weight of 18 the Guidelines -- which, as we say, we are not -- in light of all 19 of the foregoing, including the court's long-term and intimate 20 involvement with these proceedings, any such conclusion would be 21 purely a matter of surmise on our part. See Rita, 551 U.S. at 22 357-58 (noting that the sentencing judge had "greater familiarity 23 with[] the individual case and the individual defendant before 24 him than the Commission or the appeals court"); see also Gall, 25 128 S. Ct. at 597. The district court did not abuse its 26 discretion in sentencing Yousry.

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1 B. Sattar's Sentence 2 The district court calculated Sattar's total offense 3 level to be 43 and his criminal history category to be 6, for a 4 Guidelines "range" of life imprisonment. But in conducting its 5 own independent review, as guided by section 3553(a), the 6 district court concluded that such a sentence would be "seriously 7 disproportionate" to the offense. Sent'g Tr. 35. The court 8 imposed a sentence of 24 years (288 months) of imprisonment, to 9 be followed by five years of supervised release. 10 1. Guidelines Calculation. The district court 11 calculated Sattar's sentence, as it did Yousry's, under the 12 November 2000 Guidelines. The court ultimately adopted the 13 recommendations of the Probation Department in making its 14 Guidelines calculation, except insofar as the district court 15 added enhancements based on Sattar's obstruction of justice. 16 a. Enhancements 17 Sattar's Guidelines "range" of life imprisonment was 18 arrived at based in part on the sentencing court's determination 19 that the terrorism enhancement applied to both Sattar's Count-Two 20 and Count-One conduct. The district court also enhanced Sattar's 21 sentence on the ground that he obstructed justice. See U.S.S.G. 22 § 3C1.1. 23 b. Departures 24 Sattar moved for a downward departure based on the 25 conditions of his confinement. The district court recognized 26 that it was able to depart under the Guidelines for severe

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1 conditions of detention, but "because thus far th[ose conditions] 2 reflect only strict security measures rather than an abuse of 3 those measures," it declined to do so. Sent'g Tr. 33. Instead, 4 the court concluded that it would take Sattar's conditions of 5 confinement into account in considering the section 3553(a) 6 factors. 7 2. Section 3553(a) Factors. The district court began 8 its section 3553(a) analysis with a correct calculation of the 9 applicable Guidelines "range" -- life imprisonment. The court 10 then imposed the non-Guidelines sentence of 24 years' 11 imprisonment, for which it gave three principal reasons. 12 First, the court concluded that the terrorism 13 enhancement overstated the seriousness of Sattar's crime by 14 transforming a Guidelines range of 97 to 121 months to life 15 imprisonment. The court found that the otherwise-applicable 16 Guideline range was "relatively low" because Sattar was convicted 17 of conspiracy to murder and not of murder itself, and that the 18 terrorism enhancement failed to account for the fact that "no 19 injury actually occurred in this case." Sent'g Tr. 35. The 20 district court noted that a variance downward from a Guidelines 21 range driven upward by the enhancement is permissible when the 22 enhancement "prevents the penalty from fitting the crime, based 23 on the facts of th[e] record." Id. at 35-36 (citing Mandhai, 375 24 F.3d at 1249). 25 Second, the terrorism enhancement put Sattar in the 26 highest criminal history category, VI, "without a single past

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1 criminal history point." Id. at 36. The district court 2 concluded that such a jump "overstates [Sattar's] past conduct 3 and the likelihood that the defendant after a substantial period 4 of incarceration would commit further crimes." Id. 5 Third, the court noted that Sattar had been under 6 "extremely restrictive conditions of confinement for 4-1/2 7 years," and there "is every reason to expect that his conditions 8 of confinement will continue to be substantially more severe than 9 the average prisoner." Id. at 37. These conditions include 10 being kept in a cell for 23 hours a day and under constant 11 surveillance. As a result, the court concluded, "the punitive 12 aspects of the defendant's confinement are increased and the 13 deterrent effect of the defendant's confinement is also 14 increased." Id. 15 The court further noted that, for reasons explained in 16 part under seal, a downward variance is warranted based on 17 factors relevant to the history and characteristics of the 18 defendant and the need to afford adequate deterrence.34 The 19 district court observed that based on the totality of the 20 circumstances and on its review of cases presented by the 21 government as comparators, Sattar's sentence of 24 years' 22 incarceration does not promote unwarranted sentencing 23 disparities.

34

We have reviewed the document under seal. See Sattar Statement of Reasons, Oct. 26, 2006.

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1 3. Analysis. The government's principal argument on 2 cross-appeal is that Sattar's sentence is substantively 3 unreasonable in light of his conduct and "long-term dedication to 4 violence." Gov't Reply Br. 39. We have no quarrel with the 5 government as to the nature and quality of Sattar's conduct. 6 Neither, to any significant extent, did the district court. It 7 considered, at length, the seriousness of Sattar's crimes. 8 "[A] sentence outside the Guidelines carries no 9 presumption of unreasonableness." Irizarry v. United States, 128 10 S. Ct. 2198, 2202 (2008). "[T]he Guidelines are only one of the 11 factors to consider when imposing sentence . . . ." Gall, 128 S. 12 Ct. at 602. Taking those precepts as a starting point, we are 13 satisfied that in fashioning a non-Guidelines sentence, the 14 district court did not clearly err in according weight to the 15 factors it identified. As we recently noted in Cavera, "at the 16 procedural part of review, we will not categorically proscribe 17 any factor 'concerning the background, character, and conduct' of 18 the defendant, with the exception of invidious factors." Cavera, 19 550 F.3d at 191. 20 We have already noted in the context of Yousry's 21 sentence that the fact that no injury occurred may be relevant to 22 fashioning a sentence "sufficient, but not greater than 23 necessary" to accomplish the purposes set forth in 18 U.S.C. 24 3553(a). And it was not clear error for the district court to 25 conclude that a criminal history category of VI significantly

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1 overstated Sattar's criminal history and likelihood of committing 2 further offenses. 3 We have recognized that "the Sentencing Commission had 4 a rational basis for creating a uniform criminal history category 5 for all terrorists under [U.S.S.G.] § 3A1.4(b), because even 6 terrorists with no prior criminal behavior are unique among 7 criminals in the likelihood of recidivism, the difficulty of 8 rehabilitation, and the need for incapacitation." United States 9 v. Meskini, 319 F.3d 88, 92 (2d Cir.), cert. denied, 538 U.S. 10 1068 (2003). But in the same virtual breath, we said, "[a] judge 11 determining that § 3A1.4(b) over-represents 'the seriousness of 12 the defendant's past criminal conduct or the likelihood that the 13 defendant will commit other crimes' always has the discretion 14 under § 4A1.3 to depart downward in sentencing. U.S.S.G. 15 § 4A1.3." Id. 16 And even with enhancements of magnitude -- i.e., those 17 that "sharply increase the recommended sentences" -- there still 18 may be "a wide variety of culpability amongst defendants." 19 Cavera, 550 F.3d at 192. There may therefore be "different 20 sentences based on the factors identified in § 3553(a)." Id. 21 Sattar's crimes are indeed grave; he may well be the most 22 culpable of these defendants. But the district court has a 23 responsibility, inter alia, "to avoid unwarranted sentence 24 disparities among defendants with similar records who have been 25 found guilty of similar conduct," 18 U.S.C. § 3553(a)(6). 26 Perhaps all who merit this enhancement are culpable and dangerous

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1 -- but some among them are more culpable, more dangerous, with 2 crimes more serious, than others. It is the district court that 3 is primarily charged with the responsibility for making such 4 distinctions. 5 The district court is also in the best position to make 6 an individual determination about the "history and 7 characteristics" of a particular defendant, and to adjust the 8 individualized sentence accordingly. See 18 U.S.C. § 3553(a); 9 cf. U.S.S.G. § 4A1.3 (permitting downward departure where "the 10 court concludes that a defendant's criminal history category 11 significantly over-represents the seriousness of a defendant's 12 criminal history or the likelihood that the defendant will commit 13 further crimes"). Upon examining the reasons the district court 14 gave, we have no reason not to defer to its assessment here. 15 It was not unreasonable for the district court to 16 conclude that the severity of the conditions of confinement would 17 increase the severity of the punishment and the amount of 18 deterrence associated with a given term of imprisonment in light 19 of the particular conditions of confinement under which Sattar is 20 incarcerated. The district court did not abuse its discretion in 21 varying downward based on those conditions here. We think that 22 the factors upon which the district court relied in determining 23 Sattar's appropriate sentence can "bear the weight" the district 24 court assigned to them. Cavera, 550 F.3d at 191.

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1 We note, finally, that the court sentenced Sattar to 2 more than twice what the maximum Guideline sentence would have 3 been without the terrorism enhancement. 4 The sentence thus adequately reflected the severity of 5 the crime. 6 C. Stewart's Sentence 7 Before sentencing Stewart, the district court 8 calculated her offense level under the November 2000 Guidelines 9 to be 41, her criminal history category to be VI, and her 10 Guidelines range to be 360 months, or 30 years, the statutory 11 maximum. The court concluded, however, that a sentence of 28 12 months' imprisonment was sufficient but no greater than necessary 13 to accomplish the purposes set forth in 18 U.S.C. § 3553(a). 14 1. Guidelines Calculations 15 a. Enhancements 16 Over Stewart's objection, the district court concluded 17 that the terrorism enhancement of section 3A1.4 applied because 18 she had committed a federal crime of terrorism. The enhancement 19 was triggered in part by the district court's finding that 20 Stewart's actions were "calculated to affect the conduct of the 21 Egyptian government through intimidation and coercion." Sent'g 22 Tr. 108. The district court noted that Stewart's "conduct cannot 23 be found to be outside the heartland of the enhancement," but 24 stated that it nonetheless would "take all of the defendant's 25 arguments [as to why the enhancement did not properly apply to

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1 her conduct] into account in performing the analysis under 2 Section 3553(a)." Id. 3 The district court noted that the terrorism enhancement 4 automatically placed Stewart in criminal history category VI. 5 The court appeared to accept Stewart's argument that the 6 enhancement overstated the seriousness of her past conduct or the 7 likelihood that she would commit further crimes. Instead of 8 adjusting the criminal history in the context of the Guidelines 9 calculations themselves, however, the court found this to be "one 10 of the rare cases" under United States v. Crosby, 397 F.3d 103, 11 112 (2d Cir. 2005), where it would be more appropriate to 12 determine the extent of the downward adjustment in the context of 13 the section 3553(a) analysis. Sent'g Tr. 109.35 14 The government also sought an enhancement of Stewart's 15 sentence on the ground that she obstructed justice. The 16 Guidelines provide that where a defendant "willfully obstructed 17 or impeded, or attempted to obstruct or impede, the 18 administration of justice with respect to the investigation, 19 prosecution, or sentencing of the instant offense of conviction" 20 and where the obstructive conduct related to the offense of 21 conviction or a closely related offense, that the applicable

35

In Crosby, we said that "a sentencing judge will normally have to determine the applicable Guidelines range" but that precise calculation of the range may not be necessary in "situations . . . where either of two Guidelines ranges, whether or not adjacent, is applicable, but the sentencing judge, having complied with section 3553(a), makes a decision to impose a non-Guidelines sentence, regardless of which of the two ranges applies." Crosby, 397 F.3d at 111-12.

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1 Guidelines should be enhanced by 2 levels. U.S.S.G. § 3C1.1. 2 The government argued that Stewart committed perjury by 3 testifying "that she understood that there was a bubble built 4 into the SAMs whereby the attorneys could issue press releases 5 containing Abdel Rahman's statements as part of their 6 representation of him" and testifying about her purported lack of 7 knowledge of Taha. Sent'g Tr. 111. As we have noted, Taha was a 8 follower of Abdel Rahman and a military leader in al-Gama'a who 9 claimed responsibility for the November 1997 massacre at Luxor, 10 and was allegedly part of the Count-Two conspiracy. The district 11 court noted that there was "evidence to indicate that [Stewart's] 12 statements were false statements." Id. It concluded, however, 13 that it was "unnecessary to reach [the question] whether the 14 defendant knowingly gave false testimony with the intent to 15 obstruct the proceedings" for two reasons: First, the Guidelines 16 calculation already provided for the statutory maximum permitted 17 by the statutes of conviction, and second, a non-Guidelines 18 sentence was, in the estimation of the court, "reasonable and 19 most consistent with the factors set forth in Section 3553(a)." 20 Id. at 111-12. 21 b. Departures 22 Stewart sought a downward departure pursuant to section 23 5H1.4 of the Guidelines, which provides that while "[p]hysical 24 condition . . . is not ordinarily relevant in determining whether 25 a sentence should be outside the applicable guideline range," 26 nonetheless "an extraordinary physical impairment may be a reason

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1 to impose a sentence below the applicable guideline range." 2 U.S.S.G. § 5H1.4. Stewart proffered substantial documentation of 3 serious illness. As with Stewart's criminal history 4 calculations, the district court concluded that it "[did] not 5 have to reach the question of whether [Stewart's] medical 6 condition, given her age and continuing treatment, is sufficient 7 in itself to warrant a departure from the guidelines," because it 8 would take that condition into account in making its 9 determination under section 3553(a). Sent'g Tr. 110. 10 The district court declined to adjust the Guidelines 11 calculations based on Stewart's argument that she committed her 12 crime in order to avoid a perceived greater harm as set forth in 13 "Lesser Harms" policy statement of the Guidelines. See U.S.S.G. 14 § 5K2.11. Stewart argued before the district court that her 15 conduct "was the product of her perception that her client's 16 health and well-being [was] seriously jeopardized by his 17 continued imprisonment in the United States." Stewart Sent'g Br. 18 44-45. Under the policy statement, where a defendant "commit[s] 19 a crime in order to avoid a perceived greater harm," "a reduced 20 sentence may be appropriate, provided that the circumstances 21 significantly diminish society's interest in punishing the 22 conduct, for example, in the case of a mercy killing." U.S.S.G. 23 § 5K2.11. However, "[w]here the interest in punishment or 24 deterrence is not reduced, a reduction in sentence is not 25 warranted." Id. Here, the district court found this case not to 26 be one where the interest in punishment or deterrence is reduced.

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1 The policy statement further provides that a reduction in the 2 otherwise applicable sentence might be appropriate where "conduct 3 may not cause or threaten the harm or evil sought to be prevented 4 by the law proscribing the offense at issue" such as "where a war 5 veteran possessed a machine gun or grenade as a trophy, or a 6 school teacher possessed controlled substances for display in a 7 drug education program." U.S.S.G. § 5K2.11. But the court 8 declined to conclude that Stewart's conduct did not cause or 9 threaten the harm sought to be prevented by the statutes that 10 Stewart violated. 11 Stewart also moved for a departure on the ground that 12 her conduct was "aberrational." A Guidelines policy statement 13 provides that "[a] sentence below the applicable guideline range 14 may be warranted in an extraordinary case if the defendant's 15 criminal conduct constituted aberrant behavior." U.S.S.G. 16 § 5K2.20. But the court, noting that Stewart's conduct was 17 "committed over an extended period of time, involv[ing] repeated 18 acts of deception, and . . . significant planning," Sent'g Tr. 19 110, concluded that such a departure would be inappropriate, and 20 declined to grant it. 21 The district court thus reached its final Guidelines 22 calculation, using the November 2000 Guidelines, with a total 23 offense level of 41, a criminal history category of VI, and 24 therefore a Guidelines "range" of 360 months, the statutory 25 maximum. The government sought a term of life imprisonment; 26 Stewart sought a non-incarceratory sentence.

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1 2. Section 3553(a) Factors. Based on its section 2 3553(a) analysis, the district court's sentence substantially 3 varied from the applicable Guidelines range. 4 As the starting point for its section 3553(a) analysis, 5 the court addressed the applicability of the terrorism 6 enhancement, which "while correct under the guidelines, would 7 result in an unreasonable result . . . and produce a guideline 8 range about quadruple the range [that would otherwise apply] 9 without the enhancement." Sent'g Tr. 114. The district court 10 then observed: 11 First, that Stewart's was an "atypical case" for the 12 terrorism enhancement inasmuch as "the thrust of the violation 13 was the provision of a co-conspirator to a terrorist conspiracy," 14 id. at 113; second, as with Sattar, that the structure of the 15 terrorism enhancement prevented the Guidelines from taking into 16 account the fact that no victim was harmed as a result of the 17 offense as charged; and third, again as with Sattar, that the 18 enhancement operated to prevent the Guidelines from taking into 19 account Stewart's actual criminal history. By virtue of the 20 terrorism enhancement, Stewart was automatically classified as 21 within criminal history category VI, the highest possible 22 category, whereas if her sentence were based on her actual 23 criminal history, she would have been classified in category I, 24 the lowest possible category. 25 The court therefore concluded that the terrorism 26 enhancement was "dramatically unreasonable" and "overstates the

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1 seriousness of [her] past conduct and the likelihood that [she] 2 will repeat the offense." Id. Stewart "has no criminal history 3 and yet is placed in the highest criminal history category equal 4 to that of repeat felony offenders for the most serious offenses 5 including murder and drug trafficking." Id. at 113-14. The 6 criminal history category was inappropriate, the court 7 determined, in light of "the likelihood of recidivism, the 8 difficulty of rehabilitation and the need for incapacitation." 9 Id. at 114. 10 The court found that Stewart's opportunity to repeat 11 "the crimes to which she had been convicted will be nil" because 12 she "will lose her license to practice law" and "will be forever 13 separated from any contact with Sheikh Omar Abdel Rahman." Id. 14 Loss of her license to practice law both removes "the occasion 15 for her offenses" and "is itself a punishment." Id. at 116. 16 The district court viewed Stewart's personal 17 characteristics as "extraordinary" and thought they "argue[d] 18 strongly in favor of a substantial downward variance." Id. at 19 114. The court described her as a dedicated public servant who 20 had, throughout her career, "represented the poor, the 21 disadvantaged and the unpopular, often as a Court-appointed 22 attorney," thereby providing a "service not only to her clients 23 but to the nation." Id. at 115-16. And "[h]aving spent her 24 professional career often representing the poor, she is now, at 25 the end of her career, financially destitute." Id. at 115.

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1 The court also took into account Stewart's ill health 2 -- she had, for example, suffered from cancer, for which she had 3 undergone surgery and radiation therapy, and for which there is a 4 significant chance of recurrence. The district court was of the 5 view that in light of those conditions and her age, 67 years old 6 at the time, prison would be "particularly difficult" for her, 7 and that at her age, moreover, her sentence would "represent a 8 greater portion of her remaining life than for a younger 9 defendant and provide increased punishment." Id. at 117. 10 3. Analysis 11 a. The Scope of Review 12 The government's principal argument on appeal is that 13 in light of the crimes of which Stewart stands convicted, her 14 sentence was substantively unreasonable. Section 3553(a) 15 instructs that the sentence must "reflect the seriousness of the 16 offense, . . . promote respect for the law, and . . . provide 17 just punishment for the offense" and "afford adequate deterrence 18 to criminal conduct." 18 U.S.C. § 3553(a)(2)(A) & (B). Our 19 review for substantive reasonableness is a "particularly 20 deferential form of abuse-of-discretion review." Cavera, 550 21 F.3d at 188 n.5 (citing Gall 128 S. Ct. at 591). But our review 22 must also be "meaningful." Gall, 128 S. Ct. at 597; cf. Gerard 23 E. Lynch, Letting Guidelines Be Guidelines (And Judges Be 24 Judges), Ohio St. J. Crim. L. Amici: Views From the Field (Jan. 25 2008), at http://osjcl.blogspot.com/ ("[W]e should let 26 (appellate) judges be judges . . . , performing their traditional

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1 function of reining in excess and gradually developing a 'common 2 law' of what is and is not sensible." (emphasis deleted)). 3 Like the district court, we are impressed by the 4 factors that figured in Stewart's modest sentence -- particularly 5 her admirable history of providing, at no little personal cost to 6 herself, proficient legal services in difficult cases to those 7 who could not otherwise afford them. We think it noteworthy, 8 moreover, that the last of the acts for which Stewart is being 9 punished occurred a short time before the September 11 attacks on 10 the United States. That carnage might have raised in her, as it 11 surely has in many or most of us, a heightened awareness of and 12 sensitivity to the imminent dangers of terrorism and the possible 13 scope of the deadly capabilities of the terrorists with whom she 14 was dealing. 15 We also recognize, as did the district court, that the 16 terrorism enhancement may apply to persons who are culpable in 17 substantially different degrees; that Stewart's culpability may 18 well be understood to be less than Sattar's; and that the 19 district court may differentiate between different levels of 20 culpable conduct that nonetheless trigger the same substantial 21 enhancement. Yet Stewart's sentence is strikingly low in light 22 of what the district court correctly described as the 23 "irreducible core of [her] extraordinarily severe criminal 24 conduct," Sent'g Tr. 118, "which was committed over an extended 25 period of time, involved repeated acts of deception, and 26 involve[d] significant planning," id. at 110.

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1 For us to "patrol the boundaries of [the] 2 reasonableness" of a sentence imposed by a gifted and experienced 3 trial judge who has spent years intensively involved overseeing a 4 prosecution may turn out to be the legal equivalent of squaring 5 the circle.36 Yet that is what we are instructed to do. Cavera, 6 550 F.3d at 191. While we will not lightly substitute our 7 judgment for the carefully executed judgment of the learned trial 8 judge, we think that in light of the fact Stewart used her 9 privileged status as a lawyer to facilitate her violation of the 10 law, and possibly committed perjury at trial in an attempt to 11 avoid punishment for her conduct, her sentence at least tests 12 those "boundaries."

13 b. Stewart's Abuse of Her Status 14 as a Member of the Bar

15 Stewart argues that she did no more than serve as a 16 zealous advocate for her client. That belief, if indeed she 17 harbored it, gave her no license to violate the law. Stewart's 18 actions tended ultimately and ironically to subvert the same 19 fundamental right of which she took advantage -- the 20 constitutional right to counsel -- by making it less likely that 21 other incarcerated persons will have the same level of access to 22 counsel that her client was given.

36

The classic mathematical challenge of "squaring the circle," i.e., creating a square with the same area as a given circle using only compass and straight edge, was, in 1882, proved to be impossible. See 7 New Encyclopaedia Britannica Micropaedia, "Lindemann, (Carl Louis) Ferdinand von," 372 (15th ed. 2002).

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1 The district court seemed to appreciate that fact, 2 noting that Stewart "abused her position as a lawyer" in 3 committing her crimes. Sent'g Tr. 118. The court did not, 4 however, explain how and to what extent the sentence reflected 5 the seriousness of the crimes of conviction in light of the fact 6 that Stewart was engaged as a member of the bar when she 7 committed them. 8 The question therefore remains whether, because she was 9 an experienced and dedicated lawyer acting as such when she broke 10 the law in the manner that she did, her punishment should have 11 been greater than it was.37 12 c. A Comparison of Yousry's and Stewart's Sentences 13 A comparison between Stewart's and Yousry's offense 14 conduct serves to highlight the seriousness of Stewart's crimes 15 and the seemingly modest sentence she received for it. Unlike 16 Yousry, Stewart publicly disseminated "potentially lethal"

37

The district court did not address whether Stewart "abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense," meriting a two-level enhancement under the Guidelines. See U.S.S.G. § 3B1.3; see also United States v. Reich, 479 F.3d 179, 192 (2d Cir.), cert. denied, 128 S.Ct. 115 (2007) (concluding that district court did not err in applying enhancement where the defendant "used his special skills as a lawyer" to facilitate the crime). Judge Walker, in his opinion, criticizes the district court for "fail[ing] to explain why an enhancement for abuse of trust is not plainly appropriate in this case." Op. of J. Walker at [35:19-20]. But the government did not specifically invoke section 3B1.3 in its sentencing memorandum or on appeal. We therefore think it hard to fault the district court on this score. We nonetheless share many of Judge Walker's concerns in this regard. See id. at [35:19-38:9]. The district court may address this issue on remand.

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1 statements on Abdel Rahman's behalf. Unlike Yousry, Stewart was 2 convicted of making false statements to the government when she 3 agreed to abide by the terms of the SAMs. Unlike Yousry, Stewart 4 was a member of the bar and therefore acting as an officer of the 5 court. See, e.g., United States v. Seltzer, 227 F.3d 36, 41 (2d 6 Cir. 2000). She was legally knowledgeable, highly experienced, 7 and politically sophisticated, a lawyer acting in her 8 professional capacity; he was a student working for her and Abdel 9 Rahman as a translator. 10 Yet Yousry's sentence was 20 months; Stewart's only 11 eight months longer. 12 d. Stewart's Alleged Perjury 13 Also unlike Yousry, Stewart may well have obstructed 14 justice at trial. The government, supported by substantial 15 evidence, argued that Stewart committed perjury at trial. The 16 district court summarized the argument as follows:

17 First the government contends that Ms. 18 Stewart knowingly gave false testimony when 19 she testified that she understood that there 20 was a bubble built into the SAMs whereby the 21 attorneys could issue press releases 22 containing Abdel Rahman's statements as part 23 of their representation of him. 24 The government also contends that Ms. Stewart 25 testified falsely when she denied knowing who 26 Taha was until learning about him in the 27 course of the trial except for an article 28 that she came across in her representation of 29 Yasir Ahmed.

30 Sent'g Tr. 111. The court, having thus recited the allegations 31 at sentencing, declined to decide the issue.

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1 As noted, the district court gave two reasons for not 2 making such a finding. First, it concluded that because 3 Stewart's Guidelines calculations had reached the statutory 4 maximum of 360 months, a finding of obstruction of justice would 5 not have changed the calculation. This would be true if the 6 terrorism enhancement had been applied in Stewart's case, but the 7 district court, after determining that Stewart's conduct was in 8 the enhancement's "heartland," did not apply it. And even were 9 it true, the question of Stewart's perjury is nonetheless 10 relevant to her sentence pursuant to section 3553. Section 11 3553(a) requires the district court to impose a sentence 12 "sufficient, but not greater than necessary" to, among other 13 things, promote respect for the law. See 18 U.S.C. § 3553(a)(2). 14 Whether Stewart lied to the jury under oath or upon affirmation 15 at her trial is relevant to whether her sentence was "sufficient" 16 under the circumstances. 17 The district court's second reason for declining to 18 determine whether Stewart committed perjury during the course of 19 her testimony was that it had determined that a non-Guidelines 20 sentence was "reasonable and most consistent with the factors set 21 forth in Section 3553(a)." Sent'g Tr. 111-12. But as noted, we 22 think that whether Stewart lied under oath at her trial is 23 directly relevant to whether her sentence was appropriate in 24 light of Section 3553(a). Her willingness as a lawyer knowingly 25 and falsely to affirm her intention to obey the SAMs and then to 26 seek to cover up this knowing violation of the law with

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1 perjurious testimony, might well, if proven, influence our 2 conclusion as to the propriety of her sentence. Any cover-up or 3 attempt to evade responsibility by a failure to tell the truth 4 upon oath or affirmation at her trial would compound the gravity 5 of her crime. 6 We conclude that by declining to decide whether Stewart 7 committed perjury or otherwise obstructed justice, the district 8 court procedurally erred. 9 4. Remand 10 A district court's failure to find particular facts 11 will in no way impede our review in some, perhaps in most, 12 situations; this, however, is not one of them. Especially in 13 light of the absence of a finding that Stewart did not commit 14 perjury at trial or otherwise obstruct justice, we cannot 15 determine whether her sentence was substantively reasonable. 16 We therefore remand this matter to the district court 17 for resentencing, in the course of which we direct the court to 18 determine the issue of perjury and if it finds such perjury, to 19 resentence Stewart so as to reflect that finding. The district 20 court should also consider whether Stewart's conduct as a lawyer 21 triggers the special-skill/abuse-of-trust enhancement under the 22 Guidelines, see U.S.S.G. § 3B1.3, and reconsider the extent to 23 which Stewart's status as a lawyer affects the appropriate 24 sentence. Upon resentencing Stewart, the district court may 25 consider, or reconsider, any additional matter that may bear 26 upon Stewart's sentence.

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1 Although we find no procedural or substantive error in 2 connection with the sentencing of Sattar and Yousry, we 3 nonetheless remand their cases, too. We conclude that, inasmuch 4 as the interrelationship among the sentences of the co- 5 defendants is a principal consideration as to a proper sentence 6 of Stewart, the district court should have the ability, if not 7 the obligation, to resentence them as well. 8 After the district court completes the resentencing, 9 jurisdiction may be restored to this Court by letter from any 10 party, and the Office of the Clerk of this Court shall set an 11 expeditious briefing schedule and refer the matter to this panel 12 for further review. 13 CONCLUSION 14 For the foregoing reasons, we affirm the conviction of 15 Stewart, but remand this cause to the district court for 16 resentencing of Stewart, see United States v. Phillips, 431 F.3d 17 86, 90 (2d Cir. 2005), and resentencing of Sattar or Yousry or 18 both if the district court determines that they should receive 19 different sentences in light of the sentence imposed on Stewart. 20 Inasmuch as the current sentences will remain in effect as to 21 Stewart and Yousry until the district court resentences Stewart 22 -- and Sattar or Yousry if it decides to do so -- and in light 23 of the fact that we affirm on all issues related to the guilt of 24 all defendants, the district court is directed to order Stewart 25 and Yousry to surrender forthwith to begin serving their terms 26 of incarceration.

1 CALABRESI, Circuit Judge, concurring: 2 3 I join Judge Sack’s opinion in full. I write separately to comment on our decision with

4 respect to Stewart’s sentence. 5 When a judge of extraordinary ability and a well-earned reputation for exceptional 6 judgment has spent as much time on a case like this, making many decisions of tremendous 7 difficulty—which on review we are all in agreement were correct and wisely done—even the 8 usual deference that the Supreme Court indicated should be paid to the district court’s sentencing 9 must constitute an understatement. This is especially so with respect to any notions as to the 10 substantive reasonableness of a sentence. We may find that there are some procedural or 11 technical matters that warrant more consideration by the district judge, such as the question of 12 whether Stewart committed perjury and the relevance of this in determining an appropriate 13 sentence, given the district court’s treatment of the terrorism enhancement. But for us—who 14 have not been involved in the case and do not know all the backs and forths, some of which may 15 even be best left not fully articulated—to second guess the district court’s judgment seems to me 16 to be precisely what both the Supreme Court and our court sitting en banc in United States v. 17 Cavera, 550 F.3d 180, 194 (2d Cir. 2008), have said we should not do. I join the majority 18 opinion because I understand it to avoid second guessing. I write here to explore some of the 19 principal issues on which this panel is divided and to give fuller expression to the importance of 20 having appellate courts appreciate the limited, though still important, institutional role we play, 21 particularly in a case such as this one, where the temptation to go beyond that role is so great.1

1 Judge Walker, in his partial dissent, suggests that I believe some judges are infallible and beyond reproach. Far from it; were that my view, I could not join the majority opinion in

2

1 I. 2 After calculating Stewart’s sentence under the Guidelines, the district court applied the § 3 3553(a) factors and concluded that the effect of the terrorism enhancement, “while correct under 4 the guidelines, would result in an unreasonable result” in this particular case. Sent’g Tr. 114. 5 The district court arrived at this conclusion based on, inter alia, (1) the somewhat atypical nature 6 of Stewart’s case for the imposition of the terrorism enhancement, and (2) the lack of evidence 7 that any victim was harmed as a result of the charged offense.2 Id. at 113. As a procedural 8 matter, each of these grounds seems to me to be well within the district court’s discretion to

remanding Stewart’s sentence. Indeed, I agree completely with the implication in Judge Walker’s statement that all judges, including distinguished appellate ones, can become so preoccupied with a case as to lose perspective. My point is simply that before we assume that a very able district judge has erred substantively in sentencing, we should be especially cautious both in our language and in our judgments, and if we have doubts we should give that judge every opportunity to explain the sentence imposed.

2 The district court also found that the terrorism enhancement’s increase of Stewart’s Criminal History Category from I to VI—the result of the enhancement’s “horizontal” component—was “dramatically unreasonable in [her] case” because it “overstate[d] the seriousness of [her] past conduct and the likelihood that [she would] repeat the offense.” Sent’g Tr. 113. Because no member of this panel suggests this determination was procedural error, I do not focus on it. It is worth keeping in mind, however, that multiple considerations informed the district court’s view that application of the terrorism enhancement—which “produce[d] a guideline range about quadruple the range without that enhancement”—would be inappropriate in Stewart’s case. Id. at 114. For that reason, some of Judge Walker’s contentions—such as that the majority opinion, and my concurrence especially, “erroneously permit[] the district court to eliminate the enhancement altogether primarily because [harm did not result],” Op. of J. Walker at [26], or that the district court “[r]emov[ed]” Stewart from the “terrorism spectrum” because of its view that her crime was atypical, id. at [25]—strike me as misleading. Furthermore, in doing this, and elsewhere in his opinion, Judge Walker seems to label as procedural errors decisions that are normally considered substantive judgments about the amount of weight a particular factor can bear—judgments that we are to review under a deferential abuse-of-discretion standard after taking into the account “the totality of the circumstances.” See Gall v. United States, 128 S. Ct.

586, 597 (2007).

1 consider. What is more, I would be extremely reluctant to disturb a district court’s careful effort 2 to look to the unique circumstances of a defendant like Stewart and arrive at an individualized 3 sentence where the Guidelines recommendation is controlled by an undeniably broad 4 enhancement (or reduction) like the terrorism enhancement. 5 A. 6 When the terrorism enhancement is applied, it has dramatic consequences on the 7 applicable Guidelines range because it automatically increases both the offense level of a crime 8 and the defendant’s Criminal History Category. In Stewart’s case, for example, the 9 recommended sentence range without the enhancement was 78 to 97 months, while imposition of 10 the enhancement resulted in a recommended sentence of 360 months, the statutory maximum. 11 Yet as both the majority opinion and Judge Walker, in his partial dissent, recognize, the terrorism 12 enhancement casts a very broad net. In this case, that breadth was compounded by the fact that 13 the “federal crime of terrorism” for which Stewart was convicted, i.e. the provision of material 14 support, itself covers a wide range of conduct of varying degrees of culpability ranging from the 15 supply of lodging to the contribution of “weapons, lethal substances, [and] explosives.” See 18 16 U.S.C. § 2339A. When a Guidelines recommendation has such dramatic consequences and yet 17 covers a multitude of sins, unusually broad sentencing discretion in the district court is essential. 18 Indeed, it must be so to comply with the Supreme Court’s remedial holding in United States v. 19 Booker, 543 U.S. 220, 244 (2005). 20 We articulated this precise point in Cavera, recognizing that “some Guidelines 21 enhancements and reductions apply without modulation to a wide range of conduct.” 550 F.3d at 22 192. We identified as examples several financial crimes where the recommended sentence under

4

1 the Guidelines varies dramatically according to the money involved, but the culpability of an 2 individual defendant might not be captured accurately by a single variable like financial impact. 3 Id. Perhaps more closely analogous to the terrorism enhancement, we pointed to the Armed 4 Career Criminal Guidelines, under which the recommended sentences for firearms offenses 5 increase sharply if the defendant has a prior conviction for a “crime of violence”—an expansive 6 term that places crimes like attempted burglary of a dwelling under the same umbrella as crimes 7 like murder and rape. See id. (citing U.S.S.G. § 2K2.1(a)). The terrorism enhancement in its 8 breadth of coverage is akin to these examples from Cavera. The majority opinion understands 9 this when it says that the terrorism enhancement “may apply to persons who are culpable in 10 substantially different degrees,” and that the district court “may differentiate between different 11 levels of culpable conduct that nonetheless trigger the same substantial enhancement.” Maj. Op. 12 at [119]. 13 We indicated in Cavera that when a district court faces such over- and under-inclusive 14 Guidelines recommendations and when, after considering the § 3553(a) factors, it promulgates a 15 sentence that varies from that recommendation, the district court’s decision, “if adequately 16 explained, should be reviewed especially deferentially.” 550 F.3d at 192 (emphasis added). 17 Nothing we hold here should be understood to conflict with that principle, or to cast doubt on the 18 district court’s apparent conclusion that there must be much room for discretion under the 19 terrorism enhancement.3

3 Let me be absolutely clear. Neither the majority opinion nor my concurrence suggests that district courts have greater discretion exclusively for sentencing terrorism defendants. In fact, I believe precisely the opposite. My point is that the terrorism enhancement is, like the examples identified in Cavera, one instance of a Guidelines enhancement that applies “without

5

1 While we have raised questions about the closeness of Yousry and Stewart’s sentences in 2 light of Stewart’s seemingly greater level of responsibility and status as a lawyer, and while we 3 would benefit from greater explanation by the district court on this issue, it remains the district 4 court’s task to assess where Stewart’s criminal behavior falls along the spectrum of terrorism 5 enhancement culpability. And I would be very reluctant—when and if I had to review a sentence 6 in this case for substantive reasonableness—to find an abuse of discretion in a conclusion by the 7 district court that Stewart’s conduct, though undeniably serious, was significantly less serious 8 than that of other defendants subject to the terrorism enhancement.

9 B. 10 11 I am more ambivalent about the degree to which absence of harm is a valid ground on

12 which to mitigate a sentence. But I am confident that we should not preclude a district court 13 from giving lack of harm some weight, even for crimes of terrorism. Whether it is fair to assign 14 different levels of culpability in criminal sentencing to the same criminal conduct based on the 15 fortuity of whether harm results has long been a contested question in Anglo-American

modulation” to a wide range of conduct, and that we should be especially deferential to a district court’s reasoned decision to vary from such a broad Guidelines recommendation. See Cavera, 550 F.3d at 192.

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 [27] 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. See id. at [24–25]. He attributes this to congressional decisions. With great respect, I have difficulty reading what Congress has mandated as creating these differences. Judge Walker clearly views terrorism-related crimes as in a different category from all other very serious felonies—and he may well be right. It is, however, an error—though a common one among all judges—to attribute one’s own heartfelt and perhaps correct views to the legislators.

1 jurisprudence. See H.L.A. HART , THE CONCEPT OF LAW 131 (1968) (“Why should the accidental 2 fact that an intended harmful outcome has not occurred be ground for punishing less a criminal 3 who may be equally dangerous and equally wicked?”). But whatever significance the 4 consequences of a defendant’s actions ought to have, it is an inevitable part of human 5 nature—and our law—that we as a society do give consequences considerable weight when we 6 mete out punishment and blame.4 This is deeply entrenched in our legal system. The majority 7 opinion identifies the law of attempts as one generally accepted instantiation of this tendency, 8 Maj. Op. at [99–100], but there are many others—such as crimes of culpable risk creation, like 9 vehicular homicide. And while it is true that material support to terrorism is a complete crime 10 rather than an inchoate one, and so fully punishable even if no further harm results, it simply 11 does not follow that the amount of punishment may not at least in part depend on the harm that 12 occurred. The level of punishment for a completed crime varies all the time based on the amount 13 of harm that has occurred, and the Guidelines themselves often directly embrace such a policy.5

4 See Sanford H. Kadish, The Criminal Law and the Luck of the Draw, 84 J. CRIM . L & CRIMINOLOGY 679, 688 (1994) (“While in principle it’s difficult to find good reasons for making desert turn on chance, here’s the rub: most of us do in fact make judgments precisely of this kind.”). See generally PAUL H. ROBINSON & JOHN DARLEY , JUSTICE , LIABILITY AND BLAME:

COMMUNITY VIEWS AND THE CRIMINAL LAW (1995) (presenting studies suggesting public judgments about criminal culpability turn significantly on the level of harm that results from an action).

5 Judge Walker identifies several examples in his opinion, though he reaches a different conclusion about their import. See Op. of J. Walker at [26 n.11] (identifying as examples the increase of the offense level for conspiracy or solicitation to commit murder if the offense results in death, U.S.S.G. § 2A1.5(c)(1)), and the increase of the offense level for aggravated assault based on victim’s injuries, Id. § 2A2.(b)(3)). There are many other examples. See Kate Stith, The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion, 117 YALE L.J.

1420, 1476 (2008) (“Guidelines sentences for both drug crimes and financial crimes depend heavily on the quantity of harm found by the sentencing judge . . . .”).

1 Judge Walker suggests terrorism is different, and that, at least in the “very broad 2 heartland of cases,” it is procedural error for the district court to consider absence of harm as 3 relevant to the application of the terrorism enhancement and ultimately to the imposition of a 4 sentence.6 He argues that treating harm as a consideration relevant to sentencing those convicted 5 of terrorism related crimes, such as for material support, would effectively nullify the policy 6 considerations of Congress and the Sentencing Commission, who have not made reductions for 7 lack of harm part of the terrorism enhancement. Even if the Guidelines do not themselves make 8 lack of harm relevant for the application of the terrorism enhancement—and they fail to do so 9 only in the narrow sense that the enhancement does not positively reflect the existence of

6 Though Judge Walker suggests otherwise, it is not at all unprecedented for a district court to consider lack of harm relevant to sentencing in a terrorism case. Indeed, in a case that Judge Walker cites, the Eleventh Circuit affirmed a district court decision that did just that. See United States v. Garey, 546 F.3d 1359, 1363–64 (11th Cir. 2008) (per curiam). In that case, the district court found that the terrorism enhancement applied, but then granted a downward variance based in part on the fact that the defendant had not carried out any violent acts at the time of his apprehension. See United States v. Garey, 383 F. Supp. 2d 1374, 1379 (M.D. Ga. 2005) (“It is . .

. troubling that another defendant who carried out a threat to bomb public facilities, injuring and maiming (but not killing) thousands of people, would face the same sentence as this Defendant who did not cause physical injury to a single person.”). In upholding the defendant’s sentence as not unreasonable, the Eleventh Circuit specifically noted that the district court had already considered the defendant’s arguments about the lack of actual harm and, on the basis of the § 3553(a) factors, imposed a reasonable sentence below the advisory Guidelines range. See Garey, 546 F.3d at 1364.

Judge Walker cites Garey, and other cases, for the proposition that courts apply the terrorism enhancement even in the absence of harm. Op. of J. Walker at [27 n.13]. That is true, but it is not relevant to the precise issue we face because the district court here agreed that the enhancement applied under the Guidelines. It is also incorrect to say that, for all practical purposes, the district court used lack of harm to nullify the sentencing enhancement, because that was not the only consideration relied upon by the district court to support its variance. See supra note 2. The real question is whether, as a procedural matter, lack of harm can support some downward variance in a terrorism case. To this narrow question, other courts have said, or at least strongly implied, that the answer is yes.

1 injury—the Supreme Court has made clear that a district court, which has “greater familiarity 2 with [] the individual case and the individual defendant,” may properly decide that sentencing 3 judgments made by the Guidelines fail properly to reflect the § 3553(a) considerations. See Rita 4 v. United States, 551 U.S. 338, 351 (2007). 5 What is more, the Court has evidenced profound skepticism toward arguments that 6 certain policy judgments, which require departing from the Guidelines, have implicitly been 7 taken off the table as a result of congressional silence or inaction. See Kimbrough v. United 8 States, 128 S. Ct. 558, 570–73 (2007). As the Court explained, it is usually inappropriate to draw 9 inferences from congressional silence on sentencing practices because Congress has shown that, 10 when it wants to, it knows how to direct levels of sentencing in express terms. Id. at 571 (citing 11 28 U.S.C. § 994(h), which required Sentencing Commission to set Guidelines sentences for 12 recidivist offenders at or near the statutory maximum). As a result, the fact that Congress 13 increased the statutory maximum in 2001 for material support convictions that caused death, see 14 Op. of J. Walker at [26–27], and did so without saying anything whatever about how a district 15 court may treat harm when issuing a sentence that is less than the applicable maximum, cannot 16 be read to diminish the discretion the district court otherwise has under § 3553(a).7 17 I also rather doubt that we would be willing to apply consistently a principle that harm is 18 irrelevant in terrorism cases. Consider two potential defendants, both of whom provide funds to 19 different terrorists and have the requisite mens rea to support a conviction under 18 U.S.C §

7 Indeed, that Congress saw fit to increase the maximum sentence for material support based solely on whether death results can easily be understood to suggest that Congress thought amount of harm does matter in this context, even if, at times, that harm is largely fortuitous.

1 2239A. In one case, the terrorist whom the defendant funds attempts to detonate an explosive in 2 a public place, but the explosives do not go off properly and so cause only a few injuries and one 3 death that results, in part also, from inadequate medical treatment. In the second case, the 4 terrorist’s detonation attempt succeeds, blowing up a city bus and causing a major traffic 5 collision that kills or injures hundreds of people. While reasonable minds might differ as to the 6 weight the level of harm should be given in this scenario, surely we would not hold it 7 procedurally unreasonable for the district court to take the amount of harm into account when 8 sentencing the respective defendants and—while sentencing the first severely—use it as a reason 9 to give the second defendant a much greater sentence. Yet if that is so, the converse must hold, 10 because “sentencing discretion is like an elevator in that it must run in both directions.” Cavera, 11 550 F.3d at 194. To concede, as I think we must, that when hundreds of people are injured or 12 killed rather than just one a district court may take the amount of harm into account and impose a 13 higher sentence, but then to deny the court that same discretion to reach a lower sentence when, 14 through fortuity, no harm results, would manifestly contravene that principle.8 15

8 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 [99–100 n.33]. Like the majority opinion, I express no view, at this time, 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.

1 II. 2 I have focused to this point on factors the district court may consider procedurally when 3 sentencing, but this case also illustrates the importance of our adherence as an appellate court to 4 the right procedure for review of district court sentences. In Cavera, we explained that our 5 review involves a two-step process. We first ensure that the district court has not committed 6 procedural error, and only later engage in substantive review to examine whether the district 7 court has rendered a sentence that is one of the “exceptional cases where the trial court’s decision 8 cannot be located within the range of permissible decisions.” 550 F.3d at 189 (internal 9 quotations and emphasis omitted). Following this sequence of review is central to our limited 10 role. Because district courts “have an institutional advantage over appellate courts” when 11 making sentencing decisions, Koon v. United States, 518 U.S. 81, 98 (1996), our job as a 12 reviewing court is mainly to ensure that a district court’s sentence “resulted from the district 13 court’s considered judgment as to what was necessary to address the various, often conflicting, 14 purposes of sentencing.” Cavera, 550 F.3d at 189–90. Evaluating the substantive 15 reasonableness of a sentence before we have found it free from procedural defect risks the 16 substitution of our “considered judgment” for that of the district court. 17 When we identify procedural error, we have recognized the desirability of remanding to 18 the district court to let it correct its mistake and “exercise its discretion anew,” rather than 19 proceeding prematurely to review the sentence for substantive reasonableness. See Cavera, 550 20 F.3d at 190. While we have not held that this course must necessarily be followed in all 21 instances, a review of our cases makes clear that it is the ordinary and much preferred remedy. 22 See, e.g., United States v. Williams, 558 F.3d 166, 176 (2d Cir. 2009) (“In light of our decision to

11

1 remand, we reject, as premature, [the defendant’s] challenge to the substantive reasonability of 2 his sentence.”); United States v. Williams, 524 F.3d 209, 215–17 (2d Cir. 2008) (vacating 3 sentence without reaching issue of whether sentence was substantively reasonable “because we 4 conclude that the district judge committed procedural error”); United States v. Wills, 476 F.3d 5 103, 111 n.6 (2d Cir. 2007) (“Because we hold that the sentence is procedurally unreasonable, 6 we do not reach the government’s argument that if [the district court had not relied on 7 procedurally erroneous factors,] [Defendant’s] sentence should be deemed unreasonable based on 8 its length alone.”) (emphasis added), abrogated on other grounds by Kimbrough, 128 S. Ct. at 9 574–75, as recognized in Cavera, 550 F.3d at 191. 10 Other circuits have expressed a similar preference, and have sometimes stated it in even 11 more categorical terms: first remand to allow a district court to correct procedural errors and only 12 later review for substantive reasonableness.9 This is no formalism. It is consonant with our 13 system of sentencing, which asks the district court to reach a complete judgment about the 14 appropriate sentence in light of the factors enumerated in § 3553(a). Procedural errors prevent 15 the district court from properly arriving at such a holistic judgment. And in light of our 16 obligation to defer significantly to a procedurally correct sentence, we should almost always wait 17 until we have such a sentence to review before evaluating overall reasonableness.

9 See, e.g., United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir. 2009) (holding that where procedural error is identified, “we must remand” unless error is harmless, and that a court should not move on to Gall’s second step to review substantive reasonableness of sentence if there is non-harmless procedural error); United States v. Grissom, 525 F.3d 691, 696 (9th Cir.

2008) (“[W]e will remand non-harmless procedural errors . . . and only proceed to review the substantive reasonableness of procedurally sound sentences.”) (emphasis added).

1 Judge Walker argues that judicial efficiency compels us to identify substantive error at 2 the same time we remand for procedural error. No one wants unnecessary appeals. But I fail to 3 see any systemic advantages from issuing advisory opinions on the reasonableness of sentences 4 that we are vacating, and hence that are now no longer really before us. The decision to remand 5 for procedural unreasonableness presupposes that we believe the district court might not have 6 imposed the same sentence but for the procedural defect. See, e.g., United States v. Jass, 569 7 F.3d 47, 68 (2d Cir. 2009) (recognizing that procedural errors in sentencing are subject to 8 harmless error rule). When we remand for procedural flaws, it may seem inviting to comment at 9 the same time on other factors relied upon by the district court that, though procedurally proper, 10 do not, in our judgment, bear the weight the district court attributed to them. But it is not our 11 role to weigh the individual § 3553(a) factors ourselves and to give advice to the district court as 12 to our views. See Gall, 128 S. Ct. At 602. 13 Let me repeat: Substantive reasonableness calls for review of the overall sentence, not 14 individual factors. And § 3553(a) calls for balancing all the relevant factors. As a result, any 15 non-harmless procedural errors necessarily affect the sentencing calculus. Our task is to evaluate 16 (deferentially) the district court’s finished product, and not to grade its individual ingredients. To 17 do this properly, we must almost always wait for the district court to correct the procedural errors 18 that we have identified and to explain its sentence, and only then to consider the substantive 19 reasonableness of the sentence. 20 I do not mean to suggest an absolutist view on this matter. It may be that there are cases 21 where there is procedural error that—even though it is not harmless—is sufficiently separate 22 from any serious substantive concerns that we have, so as to make it plausible to address the two

13

1 issues at once. I cannot think of any such cases offhand, however. And, for the reasons well 2 expressed by the majority opinion, this case is not one of them. 3 III. 4 Another, perhaps uncomfortable, issue deserves discussion. Stewart does not appear to 5 have been the only member of Abdel Rahman’s legal team both to agree to abide by the SAMs 6 imposed upon Rahman and then subsequently to violate them. One of Rahman’s lawyers, 7 Abdeen Jabara, read to Rahman newspaper articles and letters from followers, while another, 8 Ramsey Clark, the former Attorney General of the United States, acknowledged issuing a 9 statement to the media on behalf of Rahman.10 Yet neither Jabara nor Clark was prosecuted for 10 these apparent violations. This does not mean that the Government’s decision to prosecute only 11 Stewart was invidious or improper, and I join the majority opinion in rejecting Stewart’s claim of 12 selective prosecution. But though Stewart’s selective prosecution challenge fails, it does not 13 follow that the alleged misconduct of Jabara and Clark—whom the district court may well have 14 decided shared in certain respects the culpable behavior for which Stewart was convicted—is 15 entirely irrelevant to Stewart and to her sentence. I think it possible that it is relevant, and I 16 believe that usually only the district court is positioned to evaluate that relevance. 17 As to claims of selective prosecution, we have properly recognized that our scope of 18 review is limited, for “the decision as to whether to prosecute generally rests within the broad 19 discretion of the prosecutor.” United States v. Alameh, 341 F.3d 167, 173 (2d Cir. 2003). As the

10 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.

1 Supreme Court has explained, this is because “the decision to prosecute is particularly ill-suited 2 to judicial review.” Wayte v. United States, 470 U.S. 598, 607 (1985). Yet this does not mean 3 that unfettered (even when it is non-invidious) prosecutorial discretion over who gets charged, 4 and for what, is categorically desirable. Quite the contrary: while prosecutorial discretion may be 5 salutary in a wide variety of cases, when left entirely without any controls it will concentrate too 6 much power in a single set of government actors, and they, moreover, may on occasion be 7 subject to political pressure. The result may well be to produce disparities in the way similarly 8 situated people are treated, disparities that our complex, Guidelines-with-district-court- 9 discretion, system has sought to minimize. The district court’s exercise of its sentencing 10 discretion may provide the only effective way to control and diminish unjustified disparities, 11 without operating in the blunt fashion of selective prosecution judicial review. It may reduce 12 improper differences in treatment, without impinging on the executive’s obligation to enforce the 13 law. 14 Our case law provides support for this approach. For instance, while we have not 15 required a district court to consider sentencing disparities among co-defendants, we have held 16 that district courts are permitted to do so. As we explained, it is “appropriate for a district court, 17 relying on its unique knowledge of the totality of circumstances of a crime and its participants, to 18 impose a sentence that would better reflect the extent to which the participants in a crime are 19 similarly (or dissimilarly) situated and tailor the sentences accordingly.” Wills, 476 F.3d at 110 20 (internal emphasis omitted). This, as has been recognized, allows district courts to provide a 21 check against certain otherwise unbounded prosecutorial decisions, as to what charges to bring

15

1 and as to whether to make substantial assistance motions with respect to only some defendants.11 2 It is not much of an extension to permit the district courts to exercise analogous supervision over 3 those decisions as to which prosecutors enjoy the greatest discretion and that result in the greatest 4 disparities: the decisions on whether to bring any charges at all. 5 There are, of course, many reasons for prosecutors to fail to bring charges or to bring 6 lesser charges than they could have, and some of these reasons are clearly irrelevant to the proper 7 sentence of the person who has been charged and convicted. But other reasons may be relevant 8 because they may suggest arbitrariness and can lead to abuse—such as the political clout of some 9 potential defendants as against others. We as appellate judges are ill-suited to distinguish 10 between relevant and irrelevant reasons in any given case. The same cannot be said, however, 11 for a district court judge who has presided over a whole trial in which the behavior of uncharged 12 or undercharged parties was part and parcel of the discussion. 13 This does not mean that when a district court issues a sentence that it should articulate its 14 reliance on the prosecution’s decision not to charge (or to undercharge) other parties. I am not 15 sure. While we generally ask a district court to explain the reasons behind its sentence, and

11 See KATE STITH & JOSÉ A. CABRANES, FEAR OF JUDGING : SENTENCING GUIDELINES IN THE FEDERAL COURTS 140–42 (1998) (articulating concern, pre-Booker, that “exercise of broad prosecutorial authority over sentencing within a system that severely limits the sentencing discretion of federal judges means that the power of prosecutors is not subject to the traditional checks and balances that help prevent abuse of that power”and advocating system where judges have the “countervailing discretionary authority to restrain prosecutorial power”) (emphasis in original); Ryan Scott Reynolds, Note, Equal Justice under the Law: Post-Booker, Should Federal Judges Be Able to Depart from the Federal Sentencing Guidelines to Remedy Disparity Between Codefendant’s Sentences?, 109 COLUM . L. REV . 538, 564–66 (2009) (contending that the emerging rule among circuit courts that allows district courts to consider co-defendant disparity is desirable because it mitigates negative effects of excessive prosecutorial power over sentencing).

1 indeed indicated in Cavera that “a district court errs if it fails adequately to explain its chosen 2 sentence, and must include an explanation for any deviation from the Guidelines range,” 550 3 F.3d at 190 (internal quotations omitted), there are some things that are perhaps best left unsaid 4 by the district court, even though their potential relevance is apparent on the record.12 A 5 prosecutor’s decision to charge only some parties rather than others may be one of these things. 6 The district court might quite reasonably want to avoid impugning the reputation of parties who 7 have not been indicted or tried, and hence have not had the opportunity to assert innocence in 8 open court. But that does not mean that a judge who has presided over a full trial may not have 9 valid reasons to conclude that the failure to charge some potential co-defendants affects, under 10 the § 3553 factors, the propriety of a sentence.13 11 I am inclined to think that the district court should not be barred from considering the 12 relevance of prosecutorial discretion in a particular case, and that our legal system should take 13 advantage of the district court’s unique position to consider a defendant’s sentence “in its 14 complete relevant context,” Wills, 476 F.3d at 110 (emphasis added). As appellate courts we 15 should therefore also keep this issue in mind when we review a district court’s sentence, and 16 recognize it as a further reason to defer to a district court’s sentencing judgments. In particular, 17 though we may properly ask the district court to explain apparent sentencing anomalies among

12 Cf. Guido Calabresi, A COMMON LAW FOR THE AGE OF STATUTES 172–81 (1982) (discussing tradeoffs between open recognition of a doctrine and greater opacity, where the latter might be useful in preventing a doctrine’s abuse).

13 Significantly, our system of sentencing allows the district court to consider uncharged conduct by the defendant so as to ensure that the sentence is based upon “the real conduct that underlies the crime of conviction.” Booker, 543 U.S. at 250 (Remedial Op., Breyer, J.). One of the principal reasons for this, as expressed by the Court, is to prevent prosecutors, when they make charging decisions, from “exercis[ing] a power the Sentencing Act vested in judges.” Id. at 257.

1 convicted defendants as both the majority opinion and the partial dissent do here, we should not 2 forget that there might be even greater disparities between a defendant and other individuals who 3 were not charged at all.14 4 IV. 5 Finally, I would be remiss if I did not follow the majority opinion in observing the fact 6 that all of the acts for which Stewart was convicted occurred before the attacks of September 11, 7 2001, an event that illustrates in particularly excruciating fashion that results do matter to us. It 8 does not diminish the gravity of Stewart’s crimes to take judicial notice of their timing, and to 9 recognize that our attitudes about her conduct have inevitably been influenced by the tragedy of 10 that day. To suggest otherwise, and to ignore that 9/11 has profoundly influenced our 11 retrospective assessment of the culpability of certain actions related to terrorists and terrorist 12 organizations, would be to ignore reality. As the majority opinion says, Stewart herself might

14 At footnote 20 post, Judge Walker describes as academic my discussion of the possible relation between the sentence imposed on the defendant before us, and the absence of any charges brought against the other lawyers originally involved in this case—lawyers, some of whose acts could surely be described in language as powerful as that used by Judge Walker with respect to the defendant’s misdeeds. Whatever may be said of my views, they are not academic. They reflect instead the very practical consequences of: (a) the necessary absence of any judicial control over prosecutorial decisions as to whom to charge, decisions which, as Judge Walker rightly notes, are “exclusive and absolute” and “insulated from judicial review,” Op. of J. Walker at [45 n.20]; (b) the inevitable tendency of human beings, and hence also of “prosecutors acting in good faith,” id., to take easy rather than difficult (and possibly politically costly) actions. (It is perhaps worth noting again in this regard that one of the uncharged lawyers in this case was formerly the chief prosecutor of the United States, while the defendant is described by the district court as having “represented the poor, the disadvantaged and the unpopular,” Sent’g Tr. 115); (c)

the fact that without “initiating [any] inquisitorial foray into the prosecutor’s office,” Op. of J.

Walker at [45 n.20], a district court can get a pretty good read on the likely relative behavior of those involved in the complex set of actions that led to a particular trial, including those participants not charged; and (d) that the district court is given by law the direct task of determining what is “just punishment” and, in doing so, to “avoid unwarranted . . . disparities,”

18 U.S.C. § 3553(a).

1 well have viewed her actions differently after 9/11 when the dangerousness of terrorism became 2 so palpable, so stark, and—most important— so proximate. See Maj. Op. at [119]. We must be 3 careful then in judging Stewart based on lessons that we learned only after her—very 4 serious—crimes were committed.15 In the end, this factor too is part of the district court’s 5 obligation to consider “the nature and circumstances of the offense,” and to impose a sentence 6 that “reflect[s] the seriousness of the offense” and “provide[s] just punishment.” See 18 U.S.C. § 3553(a)(1)–(2).

15 On various occasions Judge Walker, in his partial dissent, makes reference to much higher sentences given by other federal courts to those who have aided terrorists, including in cases in which no harm occurred. See Op. of J. Walker at [7 n.4, 27 n.13]. It is no small matter, however, that the overwhelming majority of the cases Judge Walker cites involved post-9/11 actions by the defendants. See, e.g., United States v. Khan, 309 F. Supp.2d 789, 796 (E.D. Va.

2004) (describing activities of Randall Royer and co-defendants and indicating “[t]he indictment alleges that . . . preparations culminated in [co-defendants and their co-conspirators] attending a terrorist and jihad training camp after September 11, 2001, with the intent to proceed to Afghanistan and fight for the Taliban and Al-Qaeda against United States troops”).

This is not the only difference between Stewart and the defendants sentenced for material support crimes in the cases Judge Walker mentions—leaving aside one case, relied on by Judge Walker, where the convictions were subsequently vacated on appeal. See United States v. Al-

Moayad, 545 F.3d 139 (2d Cir. 2008) (vacating convictions of Al-Moayad and his co-defendant Mohsen Zayed due to serious evidentiary errors). Indeed, in one instance where the district court imposed a 180-month sentence, the court explicitly found that, for a variety of reasons, the defendant was not similarly situated to Stewart. See United States v. Aref, No.04-CR-402, 2007 WL 804814, at *7 (N.D.N.Y. Mar. 14, 2007).

1 United States v. Stewart 2 No. 06-5015-cr

3 WALKER, Circuit Judge, concurring in part and dissenting in part: 4 For two years, defendant Lynne Stewart, through artifice and 5 deception, and despite sworn commitments to the contrary made to 6 the government, carried out a criminal plan to transmit 7 instructions from her imprisoned client, a terrorist leader, to 8 his jihadist followers in the Middle East, including, ominously,

9 his withdrawal of support for a fragile cease-fire in Egypt, an 10 action that effectively sanctioned renewed terrorist attacks and

11 indiscriminate loss of human life. The district court termed 12 these deliberate and horrific crimes of terrorism, for which the 13 Sentencing Guidelines recommended 30 years imprisonment, 14 “extraordinarily severe criminal conduct.” And yet the district 15 court imposed a breathtakingly low sentence of 2 1/3 years. 16 Because the majority fails to recognize that this sentence 17 trivializes Stewart’s extremely serious conduct with a “slap on 18 the wrist” that is substantively unreasonable, and because the

19 majority fails to appreciate the full extent of the district 20 court’s numerous procedural errors, I respectfully dissent.1

21

1

I concur, however, in the majority’s opinion insofar as it upholds the defendants’ convictions and directs the district court to resentence Stewart on the basis that it procedurally erred by failing to account for Stewart’s likely perjury and obstruction of justice in imposing a sentence. The majority also has determined that, at resentencing, the district court must consider “whether Stewart’s conduct as a lawyer triggers the special skill/abuse of trust enhancement under the Guidelines, see U.S.S.G. § 3B1.3 (2000), and reconsider the extent to which Stewart’s status as a lawyer affects the appropriate sentence,” Maj. Op. at [124], but declined to find the district court’s failure in this regard to be a procedural error. For reasons I set forth, this failure was one, among several, procedural errors that the majority failed to recognize.

1 In imposing Stewart’s comparably insignificant sentence, the 2 district judge rejected entirely a major enhancement, established 3 by the Sentencing Commission under Congress’ express command, 4 that applies generally to the “material support” of terrorism. 5 Despite finding that Stewart’s crimes were within the 6 enhancement’s “heartland,” Sent’g Tr. 108, the district court 7 found that the “atypicality” of Stewart’s “material support” 8 conduct in “provi[ding] a co-conspirator to a terrorist

9 conspiracy” justified discarding the enhancement. Sent’g Tr. 10 113. But, wholly apart from the fact that the provision of

11 “personnel” falls squarely within the definition of “material 12 support” provided in 18 U.S.C. § 2339A(b), it trivializes 13 Stewart’s conduct to even suggest that enabling a jailed 14 terrorist leader, with enormous sway over his jihadist followers, 15 to actively conspire with others in a scheme to kidnap and kill 16 innocent people somehow mitigates the gravity of the crime. The 17 district court also based its rejection of the enhancement on the

18 fact that Stewart’s conduct did not result in actual injuries or 19 death, even though that fact is rarely, if ever, a mitigating

20 circumstance, much less a reason to jettison the terrorism 21 enhancement altogether. 22 In addition to failing to make required findings on 23 obstruction of justice based on evidence of Stewart’s double 24 perjury at trial, as the majority recognizes, Maj. Op. at [122- 25 124], the district court also all but ignored Stewart’s gross 26 abuse of the fiduciary trust placed in her by the United States

3

1 government, and, in the face of contrary policy statements by the 2 Sentencing Commission, gave unjustified controlling weight to its 3 mitigating view of Stewart’s age, health, and previous career. 4 Numerous additional errors attended the radical reduction of 5 Stewart’s sentence from the recommended 30 years to 2 1/3 years. 6 Section 3553(a) of Title 18 of the United States Code, which 7 governed Stewart’s sentence, requires that every sentence take 8 into appropriate account “the nature and circumstances of the

9 offense[,] and the history and characteristics of the defendant”; 10 “reflect the seriousness of the offense”; “promote respect for

11 the law”; and “adequate[ly] deter[]” similar conduct in the 12 future. 18 U.S.C. § 3553(a)(1)-(2). The statute also mandates 13 consideration of “the need to avoid unwarr1anted sentenc[ing] 14 disparities.” Id. § 3553(a)(6). Recognition of the full scope 15 of the district court’s procedural errors makes plain that 16 Stewart’s sentence fails to respect these goals and is so 17 extraordinarily lenient as to manifest an abuse of discretion

18 resulting in a substantively unreasonable sentence. 19 The majority appropriately acknowledges the fine reputation

20 of the district court judge, a point with which I concur. And, 21 like the majority, I commend the district court’s management of 22 this complex and difficult trial. However, the majority goes on 23 to suggest, with Judge Calabresi’s concurrence being quite 24 explicit, that because of the district court’s reputation, our 25 review of the Stewart sentencing should be more deferential than 26 would normally be the case. This court has never recognized two

4

1 classes of judges – those who are so good that their judgment is 2 beyond reproach, and all the rest. Indeed, no judge on any 3 federal court, including the Supreme Court, can lay claim to 4 infallibility. Great respect for a particular judge cannot be a 5 basis for overlooking what, in my view, amounts to a distortion 6 of our sentencing laws. For the foregoing reasons, and others 7 that I will describe, Stewart’s sentence must be vacated and she

8 must be resentenced. 9 I. The Defendants’ Exceptionally Serious Criminal Conduct

10 Sheik Abdel Rahman, Stewart’s client, is a dedicated 11 terrorist leader with a large jihadist following in the Middle 12 East, known as the “Islamic Group” among other names, Maj. Op. at 13 [10], and a more discrete following in the United States. See 14 United States v. Rahman, 189 F.3d 88, 104-05 (2d Cir. 1999) (per 15 curiam). Abdel Rahman was locked up in federal prison in 16 Rochester, Minnesota, to serve a life sentence imposed in 1996, 17 after he was convicted for both (1) trying to wreak havoc in New

18 York City by blowing up bridges, tunnels, and buildings, and (2) 19 attempting to assassinate Egyptian President Hosni Mubarak. See

20 id. at 148. 21 For two years, 2000 and 2001, the defendants in this case — 22 Sattar, another jihadist with direct links back to Abdel Rahman’s 23 Egyptian followers; Stewart, Abdel Rahman’s lawyer; and Yousry, 24 Stewart’s student interpreter — made sure that Abdel Rahman could 25 continue to communicate with his jihadist cohorts. The 26 Department of Justice had employed “Special Administrative

5

1 Measures” (SAMs) specifically designed to prevent such 2 communications while still enabling an imprisoned terrorist to 3 speak to, and be effectively represented by his attorney. 4 Compliance with the SAMs system largely depends upon the trust 5 placed in the attorney. In accordance with the SAMs, Stewart, 6 repeatedly swore under oath that she would not transmit any non- 7 legal communications to or from Abdel Rahman. She swore falsely. 8 Undeterred by the SAMs, Stewart, assisted by Yousry, executed a

9 scheme of lies and deception against the government to keep the 10 lines of communication open between Abdel Rahman and Sattar, and,

11 through Sattar, the Egyptian jihadists. These communications 12 included a declaration by Abdel Rahman that he was withdrawing 13 his support for a tenuous cease-fire that, for some time, had 14 aimed at curbing violent attacks by Abdel Rahman’s followers upon 15 targets in Egypt.2 Stewart even went so far as to deliver this 16 statement to an Arab journalist on Abdel Rahman’s behalf, which 17 resulted in the message’s wide dissemination through the media in

18 the Middle East. 19 The federal crimes committed by the defendants are numerous.

20 All three conspired to defraud the United States, in violation of 21 18 U.S.C. § 371. Rahman, Sattar, and other jihadists conspired 22 to kill and to kidnap persons in a foreign country, in violation 23 of 18 U.S.C. § 956(a)(1), (a)(2)(A), and solicited crimes of

2

The cease-fire’s fragility is evident from its inability to stop an Islamic Group faction from slaughtering sixty tourists in Luxor, Egypt in 1997. See Douglas Jehl, 70 Die in Attack at Egypt Temple, N.Y. Times, Nov.

18, 1997, at A1.

1 violence, in violation of 18 U.S.C. § 373. Stewart and Yousry, 2 both individually and in conspiracy, provided and concealed 3 material support to terrorist activity — namely Rahman’s and 4 Sattar’s conspiracy to kill and to kidnap — in violation of 18 5 U.S.C. §§ 371, 2339A. Additionally, Stewart made multiple false 6 statements to the Department of Justice and to the Bureau of 7 Prisons, in violation of 18 U.S.C. § 1001. Such behavior 8 constitutes extraordinarily serious, indeed horrendous, criminal

9 conduct; that there was no evidence that her conduct ultimately 10 resulted in death and injury to innocent people was due to law

11 enforcement’s diligence, and not to any lack of effort by the 12 defendants or their confederates. 13 For such crimes, the advisory Sentencing Guidelines 14 effective on November 1, 2000, applicable here, provided for 15 lengthy sentences: life imprisonment for Sattar, 360 months 16 imprisonment for Stewart, and 78 to 97 months imprisonment for 17 Yousry. A Guidelines recommendation, of course, is just that — a

18 recommendation — and a district judge has considerable discretion 19 to sentence outside of the Guidelines. See Gall v. United

20 States, 128 S. Ct. 586, 594 (2007). The district court sentenced 21 the defendants well below the recommended Guidelines ranges, 22 lowering Sattar’s sentence from a recommended life term to 24 23 years, Yousry’s sentence from 78 months to 20 months, and 24 Stewart’s sentence from 360 months to a mere 28 months. 25 What is immediately striking about Stewart’s sentence is not 26 simply its extraordinary 92 percent reduction from the

7

1 recommended Guidelines range,3 but also the fact that the actual 2 term of incarceration imposed — 2 1/3 years — is unprecedented in 3 convictions for material support of terrorism.4 The Supreme 4 Court has made clear that the Guidelines provide “the starting 5 point and the initial benchmark” for sentencing, and that 6 district judges must “remain cognizant of them” throughout the

3

1 In Gall, the Supreme Court instructed appellate courts not to use, as 2 a general matter, “the percentage of a departure [from the Guidelines] as the 3 standard for determining the strength of the justifications required for a 4 specific sentence.” 128 S. Ct. at 595. This proscription recognizes that 5 percentages cannot speak reliably across the Guidelines ranges. See id. (“The 6 mathematical approach also suffers from infirmities of application.”). For 7 low Guidelines ranges, even small sentencing variances can yield large 8 percentages, unfairly exaggerating a district court’s action in imposing a 9 non-Guidelines sentence. Id. For high Guidelines ranges, major variances can 10 yield relatively modest percentages, inaccurately representing the 11 significance of the district court’s action. That percentages cannot always 12 accurately measure a variance’s significance does not, however, mean that 13 percentages are always irrelevant. When, as here, a variance from the 14 recommended Guidelines range is extraordinarily large both in terms of the 15 actual reduction of time to be served (a 232-month reduction) and the 16 percentage of the reduction (92 percent), these facts taken together strongly 17 signal the need for careful review of the justifications advanced for the 18 challenged sentence. See id. at 597 (observing that appellate courts may 19 reasonably expect a “major departure” from the Guidelines sentencing range to 20 be supported “by a more significant justification than a minor one”).

4

1 In material support convictions after the Guidelines were deemed 2 advisory in United States v. Booker, 543 U.S. 220, 245 (2005), district courts 3 have generally imposed sentences of at least ten years per material support 4 count, with considerably higher total sentences. See, e.g., United States v. 5 Aref, No. 04-CR-402, 2007 WL 804814, at *8 (N.D.N.Y. Mar. 14, 2007) (total 6 sentences of 15 years for each of two defendants, with 15 years on each of 16 7 material support (MS) counts); United States v. Paracha, No. 03-CR-1197, 8 Docket Entry No. 88 (S.D.N.Y. July 21, 2006) (total of 30 years, with 15 years 9 on each of 2 MS counts); United States v. Ali, No. 05-CR-53, Docket Entry No. 10 397 (E.D. Va. Apr. 17, 2006) (total of 30 years, with 10 years on each of 4 MS 11 counts); United States v. al-Moayad, No. 03-CR-1322, Docket Entry Nos. 197, 12 205 (E.D.N.Y. Sept. 14, 2005) (total of 75 years, with 15 years on each of 5 13 MS counts for first defendant; total of 45 years, with 15 years on each of 3 14 MS counts for second defendant), rev’d on other grounds, 545 F.3d 139 (2d Cir. 15 2008); United States v. Lakhani, No. 03-CR-880, Docket Entry No. 99 (D.N.J. 16 Sept. 12, 2005) (total of 47 years, with 15 years on one MS count); United 17 States v. Gamarra-Murillo, No. 04-CR-349, Docket Entry No. 59 (M.D. Fla. Aug. 18 9, 2005) (total of 25 years, with 15 years on one MS count); United States v. 19 Royer, No. 03-CR-296, Docket Entry Nos. 600-02 (E.D. Va. July 29 2005) (total 20 of 10 years for each of two defendants, with 10 years on each of 2 MS counts; 21 total of 97 months for third defendant, with 97 months on 1 MS count). Most 22 of these courts chose the maximum material support sentence available to them 23 under federal law: fifteen years. See 18 U.S.C. §§ 2339A(a), 2339B(a)(1).

1 sentencing process. Id. at 596, 597 n.6; accord United States v. 2 Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). When faced 3 with an “unusually lenient” sentence such as Stewart’s, we must 4 ensure that the district judge has offered “sufficient 5 justifications” to support his conclusion that the sentence is 6 appropriate. Gall, 128 S. Ct. at 594. Despite the significant 7 discretion accorded to district judges, we retain a limited but 8 important reviewing function: We must review sentences for both

9 procedural and substantive reasonableness. 10 II. Relevant Legal Standards

11 Our review proceeds under a “deferential abuse-of-discretion 12 standard,” Gall, 128 S. Ct. at 591, and “a district court’s 13 decision to vary from the Guidelines ‘may attract greatest 14 respect when the sentencing judge finds a particular case [to be] 15 outside the “heartland” to which the Commission intends 16 individual Guidelines to apply,’” Cavera, 550 F.3d at 192 17 (quoting Kimbrough v. United States, 128 S. Ct. 558, 574-75

18 (2007)). However, “closer review may be in order when the 19 sentencing judge varies from the Guidelines based solely on the

20 judge’s view that the Guidelines range fails properly to reflect 21 § 3553(a) considerations even in a mine-run case.” Kimbrough, 22 128 S. Ct. at 575 (internal quotation marks omitted); accord 23 Cavera, 550 F.3d at 192. The basic contours of our role are as 24 follows. 25 To evaluate procedural reasonableness, we must ensure that 26 the district court, in imposing a sentence, followed the

9

1 procedural steps prescribed by law. Procedural reasonableness 2 “requires that we be confident that the sentence resulted from 3 the district court’s considered judgment as to what was necessary 4 to address the various, often conflicting, purposes of 5 sentencing.” Cavera, 550 F.3d at 189-90. Thus, a district court 6 commits procedural error when it fails to calculate or 7 incorrectly calculates the Guidelines range, treats the 8 Guidelines as mandatory, neglects to consider the factors set 9 forth in 18 U.S.C. § 3553(a),5 or bases its sentence on a clearly

5 Section § 3553(a) states in relevant part:

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 . . . .

1 erroneous factual finding. See id. at 190. To avoid procedural 2 error, a district court must also “adequately . . . explain its 3 chosen sentence,” including the reasons that the sentence should 4 be different (in this case, extraordinarily different) from that 5 recommended by the Guidelines, id., in order “to allow for 6 meaningful appellate review and to promote the perception of fair 7 sentencing,” Gall, 128 S. Ct. at 597. 8 We do not categorically proscribe any factor “concerning the

9 [defendant’s] background, character, and conduct,” with the 10 exception of invidious factors. 18 U.S.C. § 3661; see also

11 Cavera, 550 F.3d at 190-91; United States v. Kaba, 480 F.3d 152, 12 156-57 (2d Cir. 2007). Still, while a district court may “take 13 into account any information known to it,” United States v. 14 Concepcion, 983 F.2d 369, 387 (2d Cir. 1992), it does not possess 15 “a blank check to impose whatever sentences suit [its] fancy,” 16 Cavera, 550 F.3d at 191 (quoting United States v. Jones, 531 F.3d 17 163, 174 (2d Cir. 2008)). And a district court, despite its

18 discretion, cannot ignore any of the § 3553(a) factors; it must 19 consider them all, Gall, 128 S. Ct. at 596, including the

20 relevant Guidelines range and “any pertinent Sentencing 21 Commission policy statement,” Cavera, 550 F.3d at 188-89. See 22 also 18 U.S.C. § 3553(a)(4)-(5). As we stated in United States v. 23 Fernandez:

(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.

1 As long as the judge is aware of both the statutory requirements and 2 the sentencing range or ranges that are arguably applicable, and 3 nothing in the record indicates misunderstanding about such 4 materials or misperception about their relevance, we will accept 5 that the requisite consideration [of the § 3553(a) factors] has 6 occurred. 7 8 443 F.3d 19, 29-30 (2d Cir. 2006) (quoting United States v.

9 Fleming, 397 F.3d 95, 100 (2d Cir. 2005) (emphasis from Fernandez 10 omitted)). However, if the district court has “ignored or 11 slighted a factor that Congress has deemed pertinent” in § 12 3553(a), it has abused its discretion. United States v. Taylor, 13 487 U.S. 326, 337 (1988); Gall, 128 S. Ct. at 607 (Alito, J., 14 dissenting); see also id. at 596 (majority opinion) (directing 15 district courts to “consider all of the § 3553(a) factors” 16 (emphasis added)). 17 In performing substantive reasonableness review, we must 18 determine whether the district court’s sentence is “located 19 within the range of permissible decisions.” Cavera, 550 F.3d at 20 191 (internal quotation marks omitted). “[W]e take into account 21 the totality of the circumstances, giving due deference to the 22 sentencing judge’s exercise of discretion, and bearing in mind

23 the institutional advantages of district courts.” Id. at 190. 24 But we must accept that such discretion is not boundless. “In

25 sentencing, as in other areas, district judges at times make 26 mistakes that are substantive. . . . Circuit courts exist to 27 correct such mistakes when they occur.” Rita v. United 28 States,551 U.S. 338, 354 (2007). Because the § 3553(a) factors 29 are to “guide sentencing,” the factors also “guide appellate 30 courts . . . in determining whether a sentence is unreasonable.”

1 United States v. Booker, 543 U.S. 220, 261 (2005). And because 2 “it is fair to assume that [the Guidelines], insofar as 3 practicable, reflect a rough approximation of sentences that 4 might achieve § 3553(a)’s objectives,” Rita, 551 U.S. at 350, our 5 judgment of a sentence’s substantive reasonableness must be 6 informed by “the extent of any variance from the Guidelines 7 range,” Gall, 128 S. Ct. at 597. 8 In light of a district court’s wide discretion in

9 sentencing, we do not “presume that a non-Guidelines sentence is 10 unreasonable.” Cavera, 550 F.3d at 190. But when a district

11 judge chooses to step away from the Guidelines, we “must consider 12 the extent of the deviation and ensure that the justification is 13 sufficiently compelling to support the degree of the variance.” 14 Gall, 128 S. Ct. at 597; accord Cavera, 550 F.3d at 190. There 15 is no “rigid mathematical formula that uses the percentage of a 16 departure as the standard for determining the strength of the 17 justifications required for a specific sentence.” Gall, 128 S.

18 Ct. at 595. Rather, our focus on the degree of deviation is 19 derived from the “uncontroversial” proposition “that a major

20 departure should be supported by a more significant justification 21 than a minor one.” Id. at 597. Whatever the justification, its 22 persuasive power depends in large part on the quality of its 23 reasoning. Accordingly, in order to determine whether the 24 sentencing court acted reasonably, we must examine how it reached 25 its conclusions, and determine how persuasive its stated reasons 26 are in supporting its exercise of discretion. See id. at 600-02.

1 If the district judge’s reasoning is sound, “we will not second 2 guess the weight (or lack thereof) that the judge accorded to a 3 given [§ 3553(a)] factor . . . . as long as the sentence 4 ultimately imposed is reasonable in light of all the 5 circumstances presented.” Fernandez, 443 F.3d at 32, 34 6 (emphasis added). We have noted, however, that “unjustified 7 reliance upon any one factor is a symptom of an unreasonable 8 sentence,” United States v. Rattoballi, 452 F.3d 127, 137 (2d

9 Cir. 2006), but only a symptom: We must reach our decision by 10 examining the reasoning of the district court in light of the

11 totality of the circumstances, with due deference to the district

12 court’s judgment. 13 III. Stewart’s Sentence

14 A. The District Court’s Findings and Conclusions 15 In sentencing Stewart, the district court appropriately 16 began by calculating her sentencing range under the Guidelines, 17 and found it to be 360 months, the statutory maximum.6 Sent’g

18 Tr. 112. Over Stewart’s objection, the district court found that 19 the Guidelines terrorism enhancement, U.S.S.G. § 3A1.4 (2000),

20 applied because she had committed a “federal crime of terrorism.” 21 Sent’g Tr. 107-08. In light of the “ample evidence” showing that 22 Stewart’s “actions were calculated to affect the conduct of the 23 Egyptian government through intimidation and coercion,” the 24 district judge held that her conduct “cannot be found to be

6

The district court calculated Stewart’s total Adjusted Offense Level at 41 with a Criminal History Category of VI, yielding a Guidelines “sentencing range” of the statutory maximum of 360 months of imprisonment.

1 outside the heartland of the enhancement.” Sent’g Tr. 108. The 2 district court acknowledged Stewart’s arguments that the 3 enhancement did not apply, and that its effect on her Criminal 4 History Category overstated the seriousness of her past conduct 5 and the likelihood that she would commit further crimes. Sent’g 6 Tr. 108-09. The district court, however, did not waver from its 7 “heartland” determination, and chose to defer consideration of 8 Stewart’s non-application and overstatement claims to its §

9 3553(a) analysis, instead of determining whether they warranted 10 departures within the Guidelines’ scheme. Sent’g Tr. 109.

11 The district court also declined to determine whether 12 Stewart’s conduct warranted a Guidelines enhancement for her 13 potential obstruction of justice under U.S.S.G. § 3C1.1 (2000). 14 The government had urged this enhancement based upon Stewart’s 15 alleged double perjury at trial. Sent’g Tr. 111. The district 16 court found “evidence to indicat[e] that [Stewart’s] statements 17 were false.” Sent’g Tr. 111. The court nonetheless chose not to

18 consider the enhancement’s applicability, on the basis that the 19 Guidelines, because of the terrorism enhancement, already

20 provided for the statutory maximum. Sent’g Tr. 111. The 21 district court also noted that it believed a non-Guidelines 22 sentence would be “most consistent with the [§ 3553(a)] factors.” 23 Sent’g Tr. 111-12. 24 Stewart sought several downward departures under the 25 Guidelines. First, she argued that she deserved a “lesser harms” 26 departure pursuant to U.S.S.G. § 5K2.11 (2000) because she

15

1 committed her crime in order to avoid a perceived greater harm.7 2 Rejecting this argument, the district court found that “the 3 circumstances of this case do not diminish society’s interest in 4 punishing the conduct at issue,” and that “[t]his is not a case 5 where the interest in punishment or deterrence is reduced.” 6 Sent’g Tr. 109-10. The district court also rejected Stewart’s 7 request for a downward departure under U.S.S.G. § 5K2.20 (2000), 8 which applies to “aberrant behavior.” The district court refused

9 to grant this departure because Stewart’s conduct “was committed 10 over an extended period of time, involved repeated acts of

11 deception, and involve[d] significant planning.” Sent’g Tr. 110. 12 Finally, the district court stated that it would take into 13 account Stewart’s requested departure for “extraordinary medical 14 conditions,” pursuant to U.S.S.G. § 5H1.4, when making its § 15 3553(a) determination. 16 Having found that the Guidelines called for Stewart to 17 receive the statutory maximum of 360 months, the district court 18 proceeded to its § 3553(a) analysis. The district court cited

7

Specifically, Stewart claimed that her criminal conduct “was the product of her perception that [Abdel Rahman’s] health and well-being were seriously jeopardized by his continued imprisonment in the United States.”

Stewart Sent’g Br. 44-45. She explained at trial that it “was important for [Abdel Rahman’s] frame of mind that he have sort of peace of mind about his family, about people he had known when he was in the world, or the letters that were usually sent to him.” Trial Tr. 7720-21. Stewart’s justification for her conduct is patently absurd in light of evidence that her transmitted messages related not to personal family matters but rather to plans to kidnap and kill large numbers of innocent people, and to terrorize even more. The fact that Stewart attempted to justify her potentially devastating criminal conduct by citing her obligations to her client not only highlights her eagerness to corrupt the role of defense counsel, but also casts serious doubt on two of the district court’s purported mitigating factors: (1) the unlikelihood that Stewart would provide material support to terrorism in the future, and (2) the “public service” value of her work as a defense attorney.

1 what it believed to be “numerous factors that argue in favor of a 2 very substantial downward variance.” Sent’g Tr. 113. First, the 3 district court noted that “this is an atypical case for the 4 terrorism enhancement,” because “there are few, if any, cases 5 where the thrust of the violation was the provision of a co- 6 conspirator to a terrorist conspiracy.” Sent’g Tr. 113. 7 “Moreover,” the district court explained, “there is no evidence 8 that any victim was in fact harmed as a result of the offense as

9 charged . . . .” Sent’g Tr. 113. The district court also found 10 the terrorism enhancement’s impact on Stewart’s Criminal History

11 Category to be “dramatically unreasonable.” Sent’g Tr. 113. 12 The district court thus concluded that application of the 13 full terrorism enhancement, “while correct under the guidelines, 14 would result in an unreasonable result in this atypical case and 15 produce a guideline range about quadruple the range without that 16 enhancement.” Sent’g Tr. 114. Accordingly, the district court 17 recalculated Stewart’s Guidelines range, now without the

18 terrorism enhancement, to be 78 to 97 months imprisonment without 19 the government’s requested obstruction enhancement, and 97 to 121

20 months imprisonment with that enhancement. Sent’g Tr. 114. The 21 district court then stated that these ranges did not “tak[e] into 22 account the extraordinary personal characteristics of the 23 defendant[,] which also argue strongly in favor of a substantial 24 downward variance.” Sent’g Tr. 114. 25 Noting that “[t]he personal characteristics of the defendant 26 are intertwined with several of the [§ 3553(a)] factors,” Sent’g

17

1 Tr. 115, the district court then discussed at length Stewart’s 2 age, health, and career. The district court described Stewart’s 3 career of “represent[ing] the poor, the disadvantaged[,] and the 4 unpopular,” and concluded that it was “no exaggeration to say 5 that Ms. Stewart performed a public service not only to her 6 clients but to the nation.” Sent’g Tr. 115-16. Although 7 acknowledging that, under the Guidelines, “prior good works are 8 not ordinarily relevant” to a defendant’s sentence, the district

9 court noted that even the Guidelines permitted “extraordinary 10 contributions [to] take a defendant outside the Guidelines

11 ra[n]ge.” Sent’g Tr. 116. Accordingly, the district court held 12 that Stewart’s past work warranted a “substantial downward 13 variance.” Sent’g Tr. 116. 14 The district court then explained that Stewart’s conviction 15 would likely prevent her from ever practicing law again. The 16 court found that this “is itself a punishment,” and “means that 17 the occasion for offenses will be removed and that a lengthy

18 sentence of imprisonment would be an excessive one . . . for 19 deterrence and protection of the public.” Sent’g Tr. 116-17.

20 The district court noted that Stewart was 67 years old, 21 making “imprisonment . . . particularly difficult on her.” 22 Sent’g Tr. 117. And the court found Stewart’s history of 23 overcoming cancer relevant, because she had a “statistically 24 significant chance of recurrence” and “suffers from other medical 25 conditions including sleep apnea.” Sent’g Tr. 117. The district 26 court acknowledged that “[m]edical care can be delivered while in

18

1 prison,” but found it “clear that prison will be particularly 2 difficult for this defendant.” Sent’g Tr. 117. 3 Despite noting that “age and physical condition are 4 discouraged factors under the guidelines,” the district court 5 concluded that, “[b]ecause imprisonment will be particularly hard 6 on the defendant, a lesser sentence than otherwise called for by 7 the advisory guidelines would be sufficient to accomplish the 8 goals of Section 3553(a)(2).” Sent’g Tr. 117-18. But the

9 district court reiterated that there still was ”an irreduceable 10 core of extraordinarily severe criminal conduct.” Sent’g Tr.

11 118. The court “point[ed] out that the offenses of conviction 12 were serious, involved dishonesty and breach of trust, and had 13 potentially lethal consequences . . . .” Sent’g Tr. 119. 14 However, the district court felt that “the seriousness of the 15 offense d[id] not wipe out the three decades of service and the 16 other characteristics of the defendant and the particular effects 17 of the sentence on this defendant.” Sent’g Tr. 119.

18 Accordingly, “[t]aking all of the [§ 3553(a)] factors into 19 account,” the district court sentenced Stewart to 28 months of

20 imprisonment. Sent’g Tr. 120. 21 B. The District Court’s Procedural and Analytical Errors 22 The majority raises three issues concerning Stewart’s 23 sentence: (1) It does not understand why Stewart’s abuse of her 24 position as a lawyer did not warrant a higher sentence, Maj. Op. 25 at [120-121]; (2) it does not understand why Stewart’s sentence 26 was only eight months longer than Yousry’s, despite her

19

1 significantly more egregious conduct, Maj. Op. at [121-122]; and 2 (3) it finds that the district court procedurally erred by 3 ignoring Stewart’s potential perjury, which was relevant to her 4 sentence under § 3553(a), Maj. Op. at [122-124]. Accordingly, 5 the majority remands for resentencing, directing the district 6 court to address the perjury issue, consider the abuse of trust 7 enhancement under U.S.S.G. § 3B1.3, and resentence Stewart. Maj. 8 Op. at [124-125]. 9 Although I share the majority’s three concerns and its 10 conclusion that resentencing is required, the district court made 11 additional, and more serious, errors that the majority overlooks. 12 Notably, because the district court’s stated reasons for 13 effectively removing altogether the Guidelines’ terrorism 14 enhancement from its sentencing consideration of the seriousness 15 of the offense cannot, in fact, mitigate the seriousness of 16 Stewart’s crime, I identify procedural error in the district 17 court’s application of 18 U.S.C. § 3553(a)(2)(A). This grave 18 error in assessing the seriousness of Stewart’s crime, moreover, 19 was compounded by the district court’s failure to account for two 20 aggravating factors plainly relevant under the Guidelines: 21 Stewart’s perjury, and her persistent and blatant abuse of a 22 position of trust to commit her crime. See 18 U.S.C. § 23 3553(a)(4). While the majority acknowledges these last two 24 procedural errors, its failure to recognize the error that they 25 compound minimizes the magnitude of the district court’s error in 26 identifying the seriousness of Stewart’s criminal conduct —

1 which, in turn, contributed to other errors. 2 Without a reasonable assessment of the seriousness of 3 Stewart’s crime, the district court could not reliably determine 4 the sentence necessary to afford adequate general and specific 5 deterrence for crimes of material support of terrorism. See 18 6 U.S.C. § 3553(a)(2)(B). The district court’s error in assessing 7 the seriousness of Stewart’s crime further precluded a reliable 8 determination of the sentence necessary to avoid unwarranted

9 disparities with similarly situated criminals. See 18 U.S.C. § 10 3553(a)(6).

11 Moreover, the district court’s error in assessing the 12 seriousness of Stewart’s crime prompted it to accord Stewart’s 13 age, health, and career mitigating weight that they cannot 14 reasonably bear. The totality of these procedural errors, all 15 originating in a disturbing misunderstanding of the seriousness 16 of Stewart’s conduct, contributed to a sentence that so 17 trivializes the terrorism crimes of conviction as to present a

18 rare occurrence in this court: a sentence that cannot be deemed 19 to fall within the wide range of substantively reasonable choices

20 available to a sentencing judge. Cf. Jones, 531 F.3d at 174. 21 1. Assessing the Seriousness of Stewart’s Crime as Required 22 by § 3553(a)(2)(A) 23 a. The Terrorism Enhancement 24 In 1994, Congress’ expressly mandated that the Sentencing 25 Commission provide for a terrorism enhancement to ensure that 26 crimes of terrorism were met with a punishment that reflected

21

1 their extraordinary seriousness. See Violent Crime Control and 2 Law Enforcement Act of 1994, Pub. L. 103-322, § 120004, 108 Stat. 3 1796, 2022. The Commission accordingly created an enhancement 4 that operates both vertically, increasing the offense level to 5 indicate the seriousness of the crime, and horizontally 6 increasing the defendant’s Criminal History Category to reflect 7 the need for deterrence, regardless of the defendant’s prior 8 record. See U.S.S.G. § 3A1.4 (2000).8 As the majority

9 acknowledges, the Sentencing Commission “unambiguously cast a 10 broad[] net” when drafting the terrorism enhancement. Maj. Op.

11 at [95] (quoting United States v. Mandhai, 375 F.3d 1243, 1247 12 (11th Cir. 2004)). The import of this enhancement “could not be 13 clearer”: It reflects Congress’ and the Commission’s policy 14 judgment “that an act of terrorism represents a particularly 15 grave threat because of the dangerousness of the crime and the 16 difficulty of deterring and rehabilitating the criminal, and thus 17 that terrorists and their supporters should be incapacitated for

18 a longer period of time.” United States v. Meskini, 319 F.3d 88, 19 91-92 (2d Cir. 2003) (emphasis added). Under the applicable

20 Guidelines, the enhancement increases the Guidelines sentence for

8

The terrorism enhancement provides:

(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.

U.S.S.G. § 3A1.4 (2000).

1 a terrorism crime to a minimum of 210 months or 17 1/2 years; 2 particularly serious crimes, such as Stewart’s, have even higher 3 sentences after the enhancement is applied.9 4 Despite finding that Stewart’s crime fell within the 5 terrorism enhancement’s “heartland,” in sentencing Stewart under 6 § 3553(a), the district court jettisoned the enhancement 7 wholesale — and from that lower platform, reduced her sentence 8 considerably further. Effectively, the district court sentenced

9 Stewart as though she had committed no “federal crime of 10 terrorism,” U.S.S.G. § 3A1.4 (2000), at all, even though the jury

11 and the district court itself had expressly found to the 12 contrary. I conclude that the district court manifestly abused 13 its discretion in doing so. 14 Whatever the merits of the district court’s disregard of the 15 enhancement on the basis that it overstated Stewart’s criminal 16 history, the district court’s complete elimination of the 17 enhancement’s vertical component, which entirely wiped out the

18 enhancement’s effect, cannot withstand scrutiny in light of the 19 district court’s obligation to impose a sentence sufficient to

20 reflect the seriousness of the crime of conviction. The district 21 court offered two rationales for ignoring the terrorism 22 enhancement’s vertical effect when determining Stewart’s 23 sentence: the “atypical” nature of Stewart’s crime, and the lack 24 of evidence of harm to victims. Neither rationale is sustainable

9

As previously noted, the district court calculated the Guidelines “sentencing range” to be the statutory maximum of 360 months of imprisonment.

1 in this case. 2 First, the district court stated that Stewart’s conviction 3 was “an atypical case for the terrorism enhancement” despite 4 concluding minutes earlier that Stewart’s conduct “cannot be 5 found to be outside the heartland of the enhancement.” Sent’g 6 Tr. 108, 113. The “atypical” heartland conduct, the district 7 court added, was “the provision of a co-conspirator to a 8 terrorist conspiracy.” Sent’g Tr. 113. The district court did 9 not explain this conclusion, nor can the record support a 10 reasonable explanation. At the outset, I question the 11 atypicality of this conduct as a mitigating factor. Congress 12 itself has made plain that giving material support, which is a 13 crime of terrorism under the Guidelines, can be satisfied 14 entirely by the provision of “personnel.” See 18 U.S.C. § 15 2339A(b) (including the provision of personnel in the definition 16 of “material support”). Indeed, it is absurd and therefore 17 necessarily unreasonable to even suggest that enabling an

18 incarcerated terrorist leader with enormous influence to actively 19 conspire with others in a scheme to kidnap and kill innocent

20 persons somehow mitigates the seriousness of the crime. 21 Sheik Abdel Rahman was no ordinary “co-conspirator.” He was 22 the head of the snake, a spiritual leader of a violent terrorist 23 group whose words carried the force of a holy writ among his 24 followers, and a man serving a life term for conspiring to bring 25 deadly chaos to New York City. See Rahman, 189 F.3d at 103-11. 26 After Abdel Rahman’s influence had been sapped by the

24

1 incarceration and isolation attending his lawful conviction, 2 Stewart’s crimes specifically targeted undoing this protection by 3 successfully enabling Abdel Rahman, as the Islamic Group’s 4 spiritual leader, to communicate with his followers and to 5 support the renewal of bloodshed. Abdel Rahman’s unique stature 6 in the terrorist world surely renders Stewart’s crime “atypical,” 7 but this atypicality is an aggravating factor, not a mitigating 8 one, thereby making Stewart more culpable than a defendant

9 engaged in more “typical” material support, such as providing 10 money or a cache of firearms to a terrorist group.

11 Although material support of terrorism may cover a 12 “multitude of sins,” as Judge Calabresi’s concurrence states, Op. 13 of J. Calabresi at [3], this observation does no work in 14 justifying a district court’s complete disregard of the terrorism 15 enhancement, particularly in this case. The tie that binds each 16 of the material support sins is that they promote terrorism. The 17 procedural concern in this case is not with where Stewart’s

18 culpability falls on the spectrum: it is with whether she is 19 placed on the terrorism spectrum at all. Removing Stewart from

20 the spectrum on account of the nature of her sins is particularly 21 egregious given that Stewart’s conduct supported Abdel Rahman, a 22 terrorist at the highest level. 23 Beyond erroneously finding mitigating atypicality in 24 “provi[ding] a co-conspirator to a terrorist conspiracy,” Sent’g 25 Tr. 113, the district judge offered no further explanation of how 26 or why Stewart’s “atypical” conduct should lessen Stewart’s

25

1 culpability or contribute to the wholesale rejection of the 2 terrorism enhancement, after he had found that conduct to be 3 within the enhancement’s “heartland.” As a result, we are left 4 only with the district judge’s bare assertion of atypicality, 5 which cannot reasonably support the complete rejection of the 6 terrorism enhancement. See Cavera, 550 F.3d at 193. 7 The district court’s second rationale for disregarding the 8 terrorism enhancement — the absence of evidence that Stewart’s

9 terrorism crimes resulted in actual harm — is similarly flawed.10 10 Several points must be made before explaining why this reasoning

11 amounted to procedural error. First, the absence of harm is in 12 no sense attributable to Stewart. Alaa Abdul Raziq Atia, the 13 leader of the violent faction of the Islamic group, including 14 Abdel Rahman, was located and killed by Egyptian authorities 15 after the cease-fire was lifted but before he could act upon it. 16 Second, the district court did not simply consider the absence of 17 harm as a factor to lessen the effect of the terrorism

18 enhancement; it used that fortuity to completely eliminate the 19 effect of the terrorism enhancement, so that Stewart, in

20 substance, was punished as if she had committed no crime of 21 terrorism at all. Third, the district court provided no reason, 22 much less a persuasive one, for why the absence of death or 23 injury should have this steep mitigating effect on Stewart’s 24 sentence.

10

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.

1 The majority, by its silence, endorses the district court’s 2 deeply flawed reliance on the fortuity that Stewart’s crimes did 3 not have the horrific consequences that she and Abdel Rahman 4 intended. In doing so, the majority fails to appreciate the 5 unique nature of terrorism support crimes, and the enhancement 6 punishment they warrant as envisioned by Congress. Judge 7 Calabresi’s concurrence mistakenly equates such crimes to 8 ordinary crimes and attempts, and erroneously permits the

9 district court to eliminate the enhancement altogether primarily 10 because the intended destruction of innocent life did not come to

11 pass. Op. of J. Calabresi at [6]. 12 Congress and the Sentencing Commission plainly intended for 13 crimes of terrorism to be fully punishable without regard to 14 whether, due to events beyond the defendant’s control, the 15 defendant’s conduct failed to achieve its intended deadly 16 consequences. Such intent is plain from the many criminal 17 statutes and Guidelines unrelated to terrorism that specifically

18 account for the level or absence of injury, while the material 19 support statute and terrorism enhancement do not.11 Moreover,

20 Congress amended Stewart’s statute of conviction in 2001 so that 21 causing death increased the statutory maximum from 15 years to

11

See, e.g., 18 U.S.C. § 2119 (varying maximum penalty for carjacking based on injuries caused); U.S.S.G. § 2A1.5(c)(1) (2000) (increasing offense level for conspiracy or solicitation to commit murder if the offense resulted in the death of a victim); id. § 2A2.2(b)(3) (2000) (varying offense level for aggravated assault based on the victim’s injuries).

1 life imprisonment.12 Contrary to the suggestion in Judge 2 Calabresi’s concurrence that the achievement of harm cannot be an 3 aggravating factor unless the absence of such harm is a 4 mitigating factor, Op. of J. Calabresi at [9], Congress has been 5 unmistakably clear that, as a general matter, the achievement of 6 actual harm may aggravate the seriousness of a terrorism crime 7 but that the absence of such harm does not mitigate such a crime. 8 Thus Judge Calabresi’s analogy to a two-way elevator is flawed in 9 terrorism cases. 10 There can be little doubt that Congress and the Commission 11 expected the terrorism enhancement to reflect the seriousness of 12 a material support crime regardless of the absence of injury. 13 The district court’s decision to place substantial mitigating 14 weight upon the absence of harm is thus so far contrary to the 15 policy choices of Congress and the Commission that it cannot be 16 deemed reasonable under § 3553(a)(1)(A) without persuasive 17 explanation. See Kimbrough v. United States, 128 S. Ct.558, 575

18 (2007). 19 Unremarkably, courts routinely, and unflinchingly, apply the

20 terrorism enhancement in the absence of proven harm.13 Here, the

12

See Uniting and Strengthening America By Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, § 810(c)(2), 115 Stat. 272, 380 (codified as amended at 18 U.S.C. § 2339A(a), 2339B(a)(1)).

13

See, e.g., Meskini, 319 F.3d at 91-92; United States v. Garey, 546 F.3d 1359, 1363 (11th Cir. 2008) (per curiam); United States v. Benkahla, 530 F.3d 300, 313 (4th Cir. 2008) (“Here, . . . the terrorism enhancement is doing just what it ought to do: Punishing more harshly than other criminals those whose wrongs served an end more terrible than other crimes.”); United States v. Hale, 448 F.3d 971, 988 (7th Cir. 2006) (“That [the defendant] did not commit a federal crime of terrorism is irrelevant; the district court found the purpose of his soliciting [a co-conspirator] was to promote a federal

28

1 Egyptian police caught and killed Alaa Abdul Raziq Atia, a 2 violent co-conspirator, after Abdel Rahman and Stewart withdrew 3 Rahman’s support for the cease-fire, but before Atia could act on 4 that message. This fortuity likely prevented Stewart’s crime 5 from harming victims, but “[f]ortuity has no bearing on 6 culpability,” United States v. Mitchell, 178 F.3d 904, 910 (7th 7 Cir. 1999), nor does it mitigate to any degree the seriousness of 8 Stewart’s conduct.14 Abdel Rahman himself was appropriately

9 given a life sentence even though his plans to assassinate 10 President Hosni Mubarak and to blow up bridges, tunnels, and

11 buildings in New York City were frustrated. See Rahman, 189 F.3d 12 at 124-126. There is no reason why fortuity should have enabled 13 Stewart, Rahman’s supporter, enabler, and co-conspirator, to be 14 sentenced as if no terrorism crimes had ever occurred. 15 In finding the district court’s heavy reliance on the lack 16 of proven harm to be reasonable, neither the majority’s opinion 17 nor Judge Calabresi’s concurrence has case law support, and I

18 have found none. Judge Calabresi is reduced to observing that 19 attempted crimes are sometimes treated differently from completed

crime of terrorism . . . .” (emphasis in original)). In footnote 6 of his concurrence, Judge Calabresi correctly points out that Garey resulted in a downward variance from the Guidelines. Op. of J. Calabresi at [7 n.6]. But the district court did not reject the terrorism enhancement altogether in its § 3553 calculus as here. In applying a somewhat reduced enhancement – even for that mentally ill defendant who’s crime was telephoning threats to a shopping mall - it imposed a 30 year prison sentence.

14

Cf. United States v. Simpson, 538 F.3d 459, 464 (6th Cir. 2008) (“It cannot be . . . that a crime [of insurance fraud] spanning several years . . .

is not very serious merely because none of the employer’s workers happened to get hurt.”); United States v. Butler, 970 F.2d 1017, 1030 (2d Cir. 1992)

(Newman, J., concurring) (“Whatever sentence is ultimately imposed on [the defendant], . . . [it] should not turn on fact-finding that has little if any relevance to moral culpability.”).

1 crimes, even when only fortuity separates the two. Op. of J. 2 Calabresi at [5-6]. But how the law treats attempts is besides 3 the point. As the majority itself recognizes, material support 4 of terrorism is “a substantive, not inchoate, offense.” Maj. Op. 5 at [51]. “This is an independent crime, complete in its most 6 serious form when the [material support] is complete and nothing 7 is added to its criminality by success or consummation, as would 8 be the case, say, of attempted murder.” Spies v. United States, 9 317 U.S. 492, 498-99 (1943). 10 Stewart completed her crime as Congress chose to define it, 11 and the Sentencing Commission, in drafting the terrorism 12 enhancement, elected not to mitigate its seriousness by rewarding 13 a defendant whose crime did not ultimately result in death or 14 serious injury with a reduced sentencing range. It is for this 15 reason that lack of success cannot normally be a mitigating 16 factor even though achievement of harm may be an aggravating 17 factor. Permitting a district judge to require success in

18 harming innocents before he will apply the terrorism enhancement 19 in a “heartland” case is to permit that judge to disregard the

20 fact that material support is itself a fully completed crime. 21 The majority states that “[f]ortuitous events are not 22 categorically irrelevant to the determination of a just 23 punishment nor is their consideration necessarily inappropriate.” 24 Maj. Op. at [100]. As a general matter, of course, I agree. In 25 addition, I do not mean to suggest that there can never be a 26 terrorism case in which absence of harm might be an appropriate

30

1 consideration, only that there is a very broad heartland of cases 2 in which it should not be considered. If, for example, an 3 incompetent terrorist satisfies the enhancement by putting a 4 small amount of arsenic into a reservoir for New York’s drinking 5 water with every intention of killing thousands, but without 6 understanding that the quantity is insufficient to cause harm, 7 the complete absence of any practical possibility that the plot 8 could cause harm may well be relevant. But, that is far from the

9 instant case, in which Stewart’s actions were designed to 10 embolden Rahman’s followers to resume a murderous jihad against

11 scores of innocent individuals in Egypt and elsewhere. In this 12 case, it was unreasonable for the district court to place any 13 weight on the fortuitous and attenuated events that saved the 14 potential victims of Stewart’s crime, much less to use it to wipe 15 out the congressionally mandated terrorism enhancement. 16 Judge Calabresi’s attempt to defend the district court’s 17 analysis, by offering a hypothetical comparing the punishment of

18 a terrorist who succeeds in causing harm with the punishment of 19 one who does not misses the mark. See Op. of J. Calabresi at

20 [9]. The question at issue is not whether the amount of harm can 21 never be a factor in sentencing. It is whether the terrorist who 22 attempts to detonate a bomb in a public place, with the intent of 23 killing many innocent Americans, should be able to escape the 24 terrorism enhancement altogether simply because his plan happens 25 to fail or be foiled by authorities. The answer, as the 26 Sentencing Commission has made clear, is no. A more persuasive

31

1 reason than the mere absence of injury must be provided by the 2 district judge who uses that factor to eliminate the terrorism 3 enhancement. To permit a judge to completely set aside the 4 enhancement in a “heartland” case simply because the terrorist 5 did not succeed, without further explanation as to why that case 6 is sui generis, is to overlook the reality that the objective of 7 terrorism is to kill large numbers of innocent people and that 8 maximum deterrence needs to be achieved irrespective of success.

9 Actual harm is a flawed metric when determining culpability 10 in material support prosecutions. Precisely because of the

11 devastating consequences at stake, it is, and should be, the 12 focus of enforcement authorities to make every effort to prevent 13 those consequences before they occur. When enforcement 14 authorities are successful, it is to their great credit and their 15 efforts should in no sense lessen the deterrent effect of 16 punishment by conferring a sentencing benefit on those whose 17 efforts were thwarted. Indeed, the House Report accompanying the

18 Comprehensive Antiterrorism Act of 1995, which criminalized the 19 material support of terrorism, explained that one of the

20 legislation’s primary goals was to “enhance [law enforcement’s] 21 capability of thwarting, frustrating, and preventing terrorist 22 acts before they result in death and destruction.” H.R. Rep. No. 23 104-383, at 42 (1995) (emphasis added). 24 I fully recognize that district judges must develop ways of 25 distinguishing whether and why one form of material support is 26 more or less reprehensible than another, given the broad range of

32

1 conduct that the material support statute criminalizes, see 18 2 U.S.C. § 2339A. However, it makes little sense to have the 3 presence or absence of resultant harm to victims be a factor in 4 that determination. Cf. United States v. Whiteskunk, 162 F.3d 5 1244, 1251 (10th Cir. 1998) (finding it “unfair not to recognize 6 and accommodate th[e] varying spectrum of culpability” when 7 sentencing for a “broad category of conduct” (emphasis added)). 8 Because material support providers often have been, and hopefully

9 will continue to be, apprehended before the crimes that they 10 foster come to fruition, the lack of physical injury is more

11 likely to be the norm than the exception. 12 Accordingly, the lack of injury here was not a fact of 13 “critical relevance . . . distinguish[ing]” Stewart’s conduct 14 “not only from that of all [her] codefendants, but from the vast 15 majority of defendants convicted of conspiracy in federal court.” 16 Gall, 128 S.Ct. at 600. Giving the absence of harm mitigating 17 significance thus not only fails to recognize the extreme

18 seriousness of such crimes even without achievement of actual 19 harm, it undermines one of § 3553(a)’s express goals:

20 eliminating sentencing disparities. See 18 U.S.C. § 3553(a)(6); 21 United States v. Simpson, 538 F.3d 459, 464 (6th Cir. 2008) 22 (noting that focusing on “the defendant’s culpability” instead of 23 fortuity when sentencing “prevents arbitrary disparities” 24 (emphasis added)). The happenstance lack of devastating injury 25 implicit in terrorism crimes generally and Stewart’s in 26 particular simply cannot “bear the weight” the district court

33

1 assigned to it. Cavera, 550 F.3d at 191. The district court 2 acted unreasonably by using the absence of proven harm to justify 3 completely discarding the terrorism enhancement and to support an 4 unwarranted mitigation of the seriousness of the crime of 5 conviction. See 18 U.S.C. § 3553(a)(2)(A). 6 My colleagues in the majority also suggest that because 7 Stewart’s terrorism crimes preceded the events of September 11, 8 2001 her view of her own culpability might have been different

9 than would be true after that tragic day. While such a lack of 10 awareness may be true of the ordinary New Yorker, such

11 attribution is ill-suited for Stewart who, as Abdel Rahman’s 12 lawyer, sat through extensive horrific evidence at his trial, 13 including that the Islamic Group was responsible for the 14 slaughter of scores of innocent tourists at Luxor and the Islamic 15 Group’s plans to bring New York to its knees by blowing up 16 buildings, bridges, tunnels, and by assassinating the Egyptian 17 President while in New York City.

18 b. The Absence of an Enhancement for Perjury and 19 Obstruction of Justice

20 After jettisoning the terrorism enhancement in assessing the 21 seriousness of Stewart’s crime of conviction pursuant to § 22 3553(a)(2)(A), the district court then noted that — with this 23 mitigation — the Guidelines would provide for a sentencing range 24 for Stewart of either 78 to 97 months or 97 to 121 months, 25 depending on whether the obstruction of justice enhancement 26 applied. I join the majority’s view that the district court’s

34

1 failure to make any findings regarding obstruction was 2 procedurally unreasonable. Maj. Op. at [124]. The district 3 court’s reason for not making such findings was that there was no 4 point in doing so, because the terrorism enhancement took the 5 sentence to the statutory maximum. After the district court 6 discarded the terrorism enhancement, however, the obstruction 7 enhancement became relevant to the Guidelines calculation. In 8 addition, as the majority notes, it was error for the district 9 court not to account for Stewart’s potential perjury in the § 10 3553(a) calculus. See Cavera, 550 F.3d at 190. 11 c. The Absence of an Enhancement for Abuse of Trust 12 The majority properly faults the district court for failing 13 to “explain how and to what extent the sentence reflected the 14 seriousness of the crimes of conviction in light of the fact that 15 Stewart was . . . a member of the bar when she committed them.” 16 Maj. Op. at [121]. The majority asks whether, in that light, 17 “her punishment should have been greater than it was,” and then 18 suggests the obvious answer. Maj. Op. at [121]. I agree with 19 the majority’s criticism. As a “guardian[] of the law,” a lawyer 20 has a special obligation to “refrain from all illegal and morally 21 reprehensible behavior.” New York Code of Professional 22 Responsibility, Preamble, EC 1-5 (effective through March 31, 23 2009). However, the majority does not go far enough. Stewart 24 was not just a lawyer who committed crimes. And she did not use 25 her professional position simply to gain access to her client and 26 to carry his jihadist messages by criminal means, conduct that,

35

1 as noted in the previous section of this opinion reflects an 2 extreme seriousness unreasonably overlooked by the district 3 court. Stewart also committed her material support crimes by 4 garnering the trust of the government, and then blatantly 5 violating that trust — a fiduciary obligation that lies at the 6 core of the SAMs system and that protects the right to counsel, 7 even for convicted terrorists. 8 Under the Guidelines, the abuse-of-trust enhancement applies

9 when a defendant has “abused a position of public or private 10 trust . . . in a manner that significantly facilitated the

11 commission or concealment of the offense.” U.S.S.G. § 3B1.3 12 (2000). As the Commentary explains, a position of trust is 13 “characterized by professional or managerial discretion,” for 14 “[p]ersons holding such positions ordinarily are subject to 15 significantly less supervision than employees whose 16 responsibilities are primarily non-discretionary in nature,” id. 17 cmt. n.1 (2000), and “[s]uch persons generally are viewed as more

18 culpable,” id. cmt. background (2000). 19 The district court failed to explain why an enhancement for

20 abuse of trust is not plainly appropriate in this case. The 21 majority fails to fault the district court on this score because 22 “the government did not specifically invoke section 3B1.3 in its 23 sentencing memorandum.” Maj. Op. at [121 n.37]. But the 24 government explicitly argued for consideration of Stewart’s abuse

25 of trust at the sentencing hearing: 26 [T]he United States Attorney’s Office who was administering the SAMs 27 trusted Ms. Stewart, put their faith in Ms. Stewart that she was

36

1 doing what she promised to do. She considered that attorney 2 affirmation that she signed an oath, a promise. Those are her 3 words. And the government accepted that commitment and believed she 4 would honor that commitment, but she violated that trust that was 5 put in her by the United States Attorney’s Office, by the Justice 6 Department, repeatedly violated [it]. 7 8 Sent’g Tr. 95. As a result, the issue was properly before the

9 district court. 10 The SAMs placed trust in Stewart because she was a member of 11 the bar appointed under the Criminal Justice Act to represent 12 Abdel Rahman, and she made explicit affirmations to the 13 government specifically required to curb her client’s ability to 14 continue terrorist activities. Only because of the SAMs did 15 Stewart have private access to, and “significantly less 16 supervision” in her contacts with, Abdel Rahman, U.S.S.G. § 3B1.3 17 cmt. n.1 (2000), and obtain the freedom she needed to act as his 18 lawyer. Stewart used, or more accurately abused, the trust that 19 the government placed in her to “facilitat[e] the commission . . 20 . of [her] offense,” id., furthering terrorist communications 21 that put innocent lives in jeopardy. Stewart was only given 22 access to Abdel Rahman to discuss legal matters; instead, she

23 engaged in criminal actions that, as she conceded at trial, had 24 nothing to do with any past, pending, or future legal proceedings

25 and were unrelated to the rendering of legal advice. See Trial 26 Tr. 7722 (acknowledging that Abdel Rahman’s “appeals [were] 27 exhausted, with no issue legally on the horizon”). 28 Stewart’s abuse of trust is particularly significant because 29 it supports the arguments of those who say that our Article III 30 courts, and the constitutional protections they afford, are not

37

1 suited to terrorist trials. See generally, e.g., Michael B. 2 Mukasey, Civilian Courts Are No Place To Try Terrorists, Wall St. 3 J., Oct. 19, 2009, at A21 (discussing the difficulties of trying 4 terrorists in Article III courts). The SAMs are designed to 5 safeguard those rights, but they must necessarily be conditioned 6 on attorneys respecting the trust placed in them, and cannot be 7 sustained without that trust. Stewart’s conduct thus raises 8 concerns reaching even beyond her dealings with Abdel Rahman.

9 Her criminal acts jeopardize, in a sensitive set of cases, the 10 accused’s right to his choice of independent counsel, which is

11 the right upon which the vindication of all of the accused’s 12 other rights, and, in a larger sense, the right to a trial by an 13 Article III court, depends.15 14 Section 3553(a) requires a district court to consider all of 15 the Guidelines relevant to a defendant’s conduct. See 18 U.S.C. 16 § 3553(a)(4); Cavera, 550 F.3d at 189 (requiring a district court 17 to “conduct its own independent review of the sentencing factors,

18 aided by the arguments of the prosecution and defense”). In 19 sentencing Stewart, the district court mentioned “abuse of trust”

20 as part of the litany of her crimes and noted that Stewart 21 “abused her position as a lawyer” in order to further Abdel 22 Rahman’s terrorist quest. Sent’g Tr. 118. Yet the district

15

See Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (“The right . . .

to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, [we] have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law.”); Powell v. Alabama, 287 U.S. 45, 69 (1932) (“Without [this right], though [a defendant] be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”).

1 court gave no indication that it considered to any extent the 2 depth of Stewart’s abuse of trust as argued by the government, 3 which went beyond simply abusing her position as a lawyer to gain 4 access to Abdel Rahman. By not fully responding to the 5 government’s clear and forceful argument by considering the 6 policy reflected in U.S.S.G. § 3B1.3,16 and accounting for 7 Stewart’s grave abuse of trust in assessing the seriousness of 8 Stewart’s crime and imposing its sentence, the district court

9 erred procedurally. 10 d. The Impact of These Errors on the Rest of the § 3553

11 Analysis 12 The district court’s errors in assessing the seriousness of 13 Stewart’s crime impacted other parts of its § 3553 analysis and, 14 for that reason, must be recognized if any remand in this case is 15 to yield a reasonable sentence. Necessarily, the district 16 court’s unreasonable underappreciation of the gravity of 17 Stewart’s offense, evident from its reasoning despite its

18 statements to the contrary, infected its consideration of “the 19 need . . . to afford adequate deterrence to criminal conduct,” 18

20 U.S.C. § 3553(a)(2), and “the need to avoid unwarranted sentence 21 disparities,” id. § 3553(a)(6), because both factors are 22 calibrated by the seriousness of the offense at stake. More

16

See United States v. Carty, 520 F.3d 984, 992-93 (9th Cir. 2008) (en banc) (“[W]hen a party raises a specific, nonfrivolous argument tethered to a relevant § 3553(a) factor in support of a requested sentence, then the judge should normally explain why he accepts or rejects the party’s position.”

(citing Rita, 551 U.S. at 355-56)); see also Gall, 128 S. Ct. at 599 (“Had the prosecutor raised the issue, specific discussion of the point might have been in order . . . .”).

1 serious crimes require greater deterrence; an unreasonably low 2 view of a crime’s severity will taint a district court’s stance 3 on whether a given sentence sufficiently deters future criminal 4 conduct, both for the specific defendant and for the public at 5 large. In no area can the need for adequate deterrence be 6 greater than in terrorism cases, with their potential for 7 devastating loss of innocent life. Similarly, an erroneous 8 assessment of a crime’s seriousness precludes accurate comparison

9 with equally serious crimes, to avoid unwarranted disparities. 10 Thus, although the district court’s mishandling of the

11 seriousness of Stewart’s crime constitutes reversible error on 12 its own, I believe it also infects other judgments the court made 13 in its mandatory § 3553(a) analysis. 14 2. The District Court’s Overwhelming Emphasis on Stewart’s 15 Age, Health, and Career 16 The district judge found that Stewart’s “extraordinary 17 personal characteristics . . . argue[d] strongly in favor of a

18 substantial downward variance,” Sent’g Tr. 114, and used that 19 finding to effectively set aside the Guidelines and their

20 import.17 To be sure, it was appropriate, indeed required that

17

1 A district court, of course, has wide discretion to impose a non- 2 Guidelines sentence after properly calculating the appropriate Guidelines 3 range. Gall, 128 S. Ct. at 597. But because the Guidelines are the 4 touchstone or “starting point” for sentencing, id. at 596, the entire thrust 5 of sentencing below or above the Guidelines is that “any deviation [is] from 6 the Guidelines,” id. at 597, and is to be justified in that context. Because 7 a district judge “must begin [his] analysis with the Guidelines and remain 8 cognizant of them throughout the sentencing process,” id. at 597 n.6 (emphasis 9 added), it is not permissible simply to set them aside in toto and to impose a 10 sentence that bears no rational relationship to them as if they did not exist. 11 See United States v. Williams, 524 F.3d 209, 215 (2d Cir. 2008) (explaining 12 that “displacement of the Sentencing Guidelines at the threshold . . . cannot 13 be reconciled with 18 U.S.C. § 3553(a)”). But this is precisely what the

40

1 the district judge consider Stewart’s “history and 2 characteristics” under § 3553(a)(1). But the district court 3 abused its discretion by allowing this factor to overwhelm its 4 consideration of “the need for the sentence imposed to reflect 5 the seriousness of the offense, to promote respect for the law, . 6 . . to provide just punishment for the offense, and . . . to 7 afford adequate deterrence to criminal conduct,” 18 U.S.C. § 8 3553(a)(2), and by using it to justify the deep discount of 332

9 months in Stewart’s sentence. Indeed, given the magnitude of the 10 district court’s error in evaluating the seriousness of the

11 offense in this case, it could not reasonably determine what 12 weight, if any, to assign to personal mitigating factors. 13 Although we have no specific formula for balancing the § 14 3553(a) factors, “unjustified reliance upon any one factor is a 15 symptom of an unreasonable sentence,” Rattoballi, 452 F.3d at 16 137, and here, the district judge’s focus on Stewart’s personal 17 qualities exceeded the bounds of reasonableness in light of the

18 gravity of her crimes. Whatever weight Stewart’s career, age, 19 and physical condition might reasonably warrant, these factors

20 cannot support an unprecedentedly lenient 28-month sentence for 21 what the district court itself termed her “extraordinarily severe 22 criminal conduct.” Sent’g Tr. 118; see supra note 3. 23 The imposition of a 28-month prison sentence “slighted,” 24 Taylor, 487 U.S. at 337, the extreme criminality of Stewart’s

1 district judge did.

1 offense18 and disregarded the manifest purpose of the Guidelines 2 regime: to avoid “unwarranted sentencing disparities,” 18 U.S.C. 3 § 3553(a)(6). See Booker, 543 U.S. at 264-65. The Guidelines 4 “reflect a rough approximation of sentences that might achieve § 5 3553(a)’s objectives,” Rita, 551 U.S. at 350, and Stewart’s age, 6 health, and career simply cannot justify the degree to which the 7 district judge deviated from the Guidelines pursuant to § 8 3553(a).

9 The district court’s apparent disregard of “the need to 10 avoid unwarranted sentence disparities,” 18 U.S.C. § 3553(a)(6),

11 is particularly striking in light of the court’s obligation to 12 consider “pertinent [Commission] policy statement[s],” id. § 13 3553(a)(5). For example, the Commission has determined that only 14 “an extraordinary physical impairment may be a reason to impose a 15 sentence below the applicable guideline range,” U.S.S.G. § 5H1.4 16 (2000) (emphasis added), yet the record indicates that Stewart, 17 despite medical issues, will receive appropriate medical care in

18 prison, and the district judge himself acknowledged that 19 “[m]edical care can be delivered while in prison,” Sent’g Tr.

18

1 The district court treated Stewart’s terrorism and fraud crimes — 2 “particularly grave” offenses, Meskini, 319 F.3d at 92 — much more leniently 3 than what the Guidelines recommend for bank embezzlement, see U.S.S.G. § 4 2B1.1(b)(6)(B) (2000) (recommending a minimum range of 51-63 months for 5 embezzlement “affect[ing] a financial institution” and resulting in over 6 “$1,000,000 in gross receipts”), and on par with the Guidelines 7 recommendations for criminal trademark infringement, see U.S.S.G. § 2B5.3 8 (2000) (recommending a minimum range of 24-30 months for the manufacture of 9 infringing items exceeding $120,000 in total retail value), conspiring to 10 steal over $5,000 of car parts, see U.S.S.G. § 2B1.1(b)(1)(E), (5) (2000) (15- 11 21 months), burgling a residence and stealing a $2,600 television, see 12 U.S.S.G. § 2B2.1(a)(1), (b)(2)(B) (2000) (27-33 months), and possessing 1.5 13 grams of crack cocaine with the intent to distribute it, see U.S.S.G. § 14 2D1.1(c)(11) (2000) (27-33 months).

1 117. The district judge, of course, is not bound by Commission 2 policy, but the record nowhere suggests that Stewart’s condition 3 was sufficiently compelling to distinguish her from others in the 4 prison population and to warrant any leniency on that score. As 5 for Stewart’s age, the Commission has concluded that this factor 6 “is not ordinarily relevant in determining whether a sentence 7 should be outside the applicable guideline range[, but it] may be 8 a reason to impose a sentence below the applicable guideline

9 range in a case in which the defendant is elderly and infirm . . 10 . .” U.S.S.G. § 5H1.1 (2000). Again, the district court was not

11 bound by this statement. But the district judge’s point that 12 Stewart’s sentence “will represent a greater portion of her 13 remaining life than for a younger defendant,” Sent’g Tr. 117, 14 would apply to any older defendant, and this is not an 15 extraordinary factor, such as being “elderly and infirm,” that 16 can justify excessive leniency. See Rattoballi, 452 F.3d at 136 17 n.4, 137. The district court cited both Stewart’s age (67 years)

18 and health (sleep apnea; cancer survivor with a chance of 19 recurrence) in concluding that “[a]ny sentence of imprisonment

20 will be particularly difficult for the defendant.” Sent’g Tr. 21 117. Yet as the majority notes, Maj. Op. at [26-27 n.9], Stewart 22 herself apparently did not share the district court’s misgivings: 23 “I don’t think anybody would say that going to jail for 28 months 24 is anything anyone would look forward to, but as my clients have

43

1 told me, ‘I can do that standing on my head.’”19 Stewart was not 2 “elderly and infirm,” and I do not see how her age or health 3 could reasonably contribute to such a significant variance from 4 the Guidelines. Advancing age and treatable medical conditions 5 are not normally a ticket to overwhelming leniency, and this case 6 is no different from the norm in that respect. 7 Similarly, Stewart’s career of public service, as admirable 8 as it seemed to the district court, can only go so far. “[I]t is

9 usually not appropriate to excuse a defendant almost entirely 10 from incarceration because [s]he performed acts that, though in

11 society’s interest, also were the defendant’s responsibility to 12 perform and stood to benefit the defendant personally and 13 professionally.” United States v. D’Amico, 496 F.3d 95, 107 (1st 14 Cir. 2007). The district court placed emphasis on Stewart’s 15 providing legal services to “the poor, the disadvantaged[,] and 16 [the] unpopular over three decades,” Sent’g Tr. 115, but as the 17 district judge himself put it, “that credit does not extend to 18 the knowing violation of the law,” Sent’g Tr. 119. Yet given the 19 severity of Stewart’s conduct, this credit, which contributed 20 heavily to a 332-month reduction from the recommended Guideline 21 range to a 28-month sentence, goes further than the district 22 court’s explanation can bear. Giving such excessive weight to 23 Stewart’s resumé trivializes the seriousness of her crimes,

19

Ellen Barry, Terrorist Lawyer Gets Two-Year Term, LA Times, Oct. 17, 2006, available at http://articles.latimes.com/2006/oct/17/nation/na-stewart17 (last visited Aug. 20, 2009); Katie Cornell, Wrist Slap for Smirk Jerk Terror Attorney, N.Y. Post, Oct. 17, 2006, at 4.

1 particularly when her legal career, by leading the government to 2 trust her, is what enabled her to commit these crimes. 3 Overemphasizing Stewart’s career as a lawyer also fails to 4 “promote respect for the law” or “afford adequate deterrence to 5 criminal conduct” under any reasonable understanding of those 6 mandatory sentencing considerations. 18 U.S.C. § 3553(a)(2). 7 The district court found that Stewart’s likely disbarment 8 “significantly . . . mean[t] that the occasion for her offenses

9 will be removed,” Sent’g Tr. 116. This is wrong. One does not 10 need a law license in order to materially support terrorism or to

11 defraud the U.S. government. 12 In sum, though we will rarely identify procedural error in 13 the weight a sentencing judge assigns to relevant factors, this 14 is one of those rare cases where the record of a defendant’s 15 personal characteristics simply cannot bear the weight necessary 16 to support the challenged sentence. See Cavera, 550 F.3d at 192. 17 3. Overall Substantive Unreasonableness

18 I by no means assume that, upon resentencing, Stewart’s 19 sentence will remain at 28 months, but I would be remiss if I did

20 not comment further on Stewart’s current sentence. Unlike the 21 majority, I do not believe that this court must hold off on the 22 question of substantive unreasonabless until the procedural flaws 23 it identifies are remedied. Maj. Op. at [99-100 n.33]. The 24 “informed intuition of the appellate panel” has a place in 25 appellate review. See United States v. Rigas, No. 08-CR-3485, 26 2009 WL 3166066, at *11 (2d Cir. Oct. 5, 2009). And in the rare

45

1 instance when a sentence imposed by a district court judge makes 2 it plain that his judgment is in stark contrast with the 3 appellate panel’s intuition – as evidenced, for example, by the 4 comparative sentences of co-defendants – judicial efficiency 5 counsels us to identify the substantive error along with 6 procedural error at this time to minimize the need for subsequent 7 appeals. This is not, as Judge Calabresi suggests, the issuing 8 of an advisory opinion. Op. of J. Calabresi at [12]. Rather it 9 is providing a district court with the full basis for the 10 appellate panel’s remand prior to resentencing.20 11 I stress that it is not the role of the appellate court to 12 compare the district court’s sentence to what the appellate court 13 deems the “correct” sentence. Instead, our task is to ask

20

Judge Calabresi’s concurrence also contains the notion, never mentioned earlier in these proceedings, that because Abdel Rahman’s two other lawyers were not charged with SAMs violations some justification for a lower sentence for Stewart might be found since “there might be even greater disparities between a defendant and other individuals who were not charged at all.” Op. of J. Calabresi at [16-17]. Judge Calabresi further suggests that it is not much of an extension to permit district courts to use their sentencing authority “to exercise . . . supervision” over discretionary prosecutorial decisions not to bring charges where there is no claim of selective prosecution. Op. of J. Calabresi at [15]. Whatever attraction this idea might hold for a law review editor, it should not find a home in the law. Prosecutorial discretion is traditionally exclusive and absolute, subject of course to constitutional limits. See United States v. Nixon, 418 U.S. 683, 693 (1974); United States v. Molina, 530 F.3d 326, 332 (5th Cir.

2008); In re U.S., 503 F.3d 638, 642 (7th Cir. 2007). Insulated from judicial review by the separation of powers, United States v. Campo, 140 F.3d 415, 419 (2d Cir. 1998), prosecutors acting in good faith, and there is no suggestion to the contrary in this case, base their decisions not to prosecute on many factors (cooperation and truthful accounts, trial dynamics, the quality of evidence, time and resource requirements to name a few). It is enough of a task for a busy district judge to administer justice in the cases actually before the court without initiating its own inquisitorial foray into the prosecutor’s office. In re U.S., 503 F.3d at 641 (“Judges in the United States resolve the parties’ disputes rather than initiate their own factual inquiries on issues that the parties have not contested; that’s a major difference between adversarial and inquisitorial systems.”) And to what purpose? To possibly reduce an otherwise just sentence?

1 whether the sentence imposed by the district court is so high or 2 low that it is manifestly unjust or shocks-the-conscious. Id. 3 We are not a mere “rubber stamp.” Id. (citing United States v. 4 Rattoballi, 452 F.3d 127, 132 (2d Cir. 2006)). “If we are going 5 to let (district) judges be judges, and trust them to exercise 6 the necessary discretion with sensitivity to the need for 7 coherent sentencing policy, so we should let (appellate) judges 8 be judges as well, performing their traditional function of

9 reining in excess and gradually developing a “common law” of what 10 is and is not sensible.”21 Hon. Gerard E. Lynch, Sentencing

11 After Gall and Kimbrough: Letting Guidelines Be Guidelines (and 12 Judges Be Judges), OSCJL Amici: Views From the Field 5 (January 13 2008), at http://osjclblogspot.com. 14 Even apart from the aggravating circumstances of Stewart’s 15 obstruction of justice, her abuse of trust, and her false 16 statements to the government, Stewart’s conduct was closer to 17 that of Sattar, whose 24-year sentence still represented a sharp

18 reduction from his Guidelines sentence of life imprisonment, than 19 that of Yousry. The district court found that Stewart and Sattar

20 had engaged in conduct that warranted application of the 21 terrorism enhancement and that was “calculated to influence or 22 affect the conduct of the Egyptian government,” see Sent’g Tr.

21

Judge Calabresi suggests that substantive unreasonabless should not be determined when tied to procedural error than can be corrected first, although if the two are distinct then it may be “plausible to address the two issues at once” if the procedural error is not harmless. Op. of J. Calabresi at [12]. But whether the procedural error is harmless is irrelevant to substantive unreasonableness. In any event, he fails to explain the benefit of a “two-step appeal” rule that can result in correcting a good district judge on two separate occasions when one would suffice.

1 24, 28, & 108, but that student interpreter Yousry had not, 2 Sent’g Tr. 143-44. 3 Nonetheless, Stewart’s sentence was much closer to that of 4 Yousry, even though, as the district court noted, Yousry’s “role 5 in the offenses was subservient to the others involved,” Sent’g 6 Tr. 150. Stewart was given a sentence only eight months greater 7 than that of Yousry, and in relative terms, she was treated far 8 more leniently. Yousry’s conduct, unlike that of Sattar and

9 Stewart, was found by the district court to not warrant the 10 terrorism enhancement; nor did Yousry falsely sign the SAMs or

11 merit consideration for obstruction-of-justice and abuse-of-trust 12 enhancements. As a result, Yousry’s Guidelines range was 78 to 13 97 months, less than one-third of Stewart’s Guidelines range of 14 360 months. Yousry’s actual 20-month sentence represented just 15 under one-quarter of the 88-month median of his Guidelines range, 16 while Stewart’s sentence was under one-tenth of her 360-month 17 Guidelines range. Under the Guidelines, more than 260 months

18 separated the sentences of Stewart and Yousry, yet the district 19 court chose sentences that were only eight months apart. Like

20 the majority, I am puzzled by this mismatch, particularly in 21 light of “the need to avoid unwarranted sentence disparities.” 22 18 U.S.C. § 3553(a)(6). 23 Because Stewart’s sentence is so out of line with the 24 extreme seriousness of her criminal conduct (and, not 25 surprisingly given that fact, with what the Guidelines 26 recommend), notwithstanding the considerable deference due the

48

1 district court at sentencing, I conclude that Stewart’s sentence 2 is not only procedurally unreasonable, but also substantively 3 unreasonable and an abuse of discretion. The district court’s 4 rationale for the sentence cannot “bear the weight assigned it 5 under the totality of circumstances in the case.” Cavera, 550 6 F.3d at 191. Indeed, I am at a loss for any rationale upon this 7 record that could reasonably justify a sentence of 28 months 8 imprisonment for this defendant under § 3553(a). Accordingly, in

9 addition to the procedural flaws that I have identified, 10 Stewart’s sentence should be vacated as substantively

11 unreasonable and resentencing required on that basis.