United States v. Stewart

597 F.3d 514, 2010 U.S. App. LEXIS 3772, 2010 WL 610232

Opinions

DENNIS JACOBS, Chief Judge, joined by RICHARD C. WESLEY and PETER W. HALL, Circuit Judges, concurring in the denial of rehearing in banc.

I concur in the decision of the Court to deny in banc rehearing in this case. But because I do so notwithstanding my agreement with the panel dissent, I owe an explanation.

I

With respect to Stewart’s sentence, the amended panel majority opinion identifies a single procedural error and remands so that the district court can have an opportunity to consider that error, and much else besides. The panel majority acknowledges the unaccountable gap between the offense committed and the sentence imposed — the sentence is said to be “strikingly low” — but believes that review for substantive reasonableness should follow after the district court has had an opportunity to address procedural error (the one identified by the panel majority, the ones detailed by Judge Walker, and the ones hypothesized by Judge Calabresi). This two-step is not announced as an inflexible sequence for all cases, which is to the good, because procedural error and substantive error are permeable concepts. But in this instance, I think postponing the consideration of substantive reasonableness was a mistake and a missed opportunity.

The single procedural error identified by the panel majority is the failure of the district court to decide whether Stewart committed perjury or otherwise obstructed justice. At the same time, nothing in the panel majority opinion — as amended — does or should preclude the district court from rethinking Stewart’s sentence and its component considerations from scratch. The panel majority seems to encourage that. So do I.

II

Judge Walker’s dissent identifies several salient additional procedural errors, and I agree that these additional errors should be addressed by the district court on remand. I cannot improve on Judge Walker’s anatomy of the case, and no purpose would be served by repetition here or by point-by-point endorsement. I will limit myself to three observations.

[A] The terrorism enhancement is the dominant sentencing consideration in this case. The district court erred in discounting it to zero.¹ That is an error both procedural and substantive in nature, highlighting one reason that the two-step sequencing of review for procedural and substantive error makes so little sense in this case.

Any discount based on the fortuitous lack of harm resulting from Stewart’s offense is error (whether procedural, substantive, or both). For the reasons set forth in Judge Walker’s dissent, I agree that injury and death can serve as aggravating factors in sentencing for the crime of material support to terrorism, but that the absence of injury and death cannot serve as mitigating factors.

[B] The district court did not decide whether Stewart abused her position of trust, or her special skills as a lawyer. The panel majority recognizes this omission and, without classifying it as procedural error, directs that on remand “[t]he district court should also 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, and reconsider the extent to which Stewart’s status as a lawyer affects the appropriate sentence.” Like Judge Walker, I do not believe that this direction goes far enough.

Judge Walker observed that Stewart’s violation of the Special Administrative Measures jeopardizes an accused’s right to counsel, among other rights. I offer a related concern, which underscores both the applicability of the special-skill/abuse-of-trust enhancement in this case and the seriousness of Stewart’s crime. The trust that Stewart betrayed was conferred upon her as a lawyer for the purpose of assuring that her client would have post-conviction access to counsel. That trust was reposed in her as an officer of the Court, notwithstanding the horrible security dangers that would result from betrayal. Her offense tends to erode judicial confidence that lawyers can be entrusted with national secrets — or (as in this case) with the means to trigger or promote a mass slaughter of innocents. Stewart’s misuse of her special skills and her abuse of trust thus transcend the effect in a single case. The defense of certain sensitive criminal cases and the prosecution of certain sensitive cases of constitutional tort are impaired unless counsel can draw upon a fund of confidence and trust, and Stewart’s offense has debased that currency. See Arar v. Ashcroft, 585 F.3d 559, 578 & n. 11 (2d Cir.2009) (in banc) (citing Stewart’s offense to demonstrate that “the undertakings of counsel” cannot “necessarily abate[ ]” the “risk” of “inadvertent or deliberate disclosure of information harmful to our own and other states”).

[C] The panel majority observes that the district court, in its consideration of the 18 U.S.C. § 3553(a) factors, “found that Stewart’s opportunity to repeat ‘the crimes [for] which she had been convicted will be nil’ because she ‘will lose her license to practice law’ and ‘will be forever separated from any contact with Sheikh Omar Abdel Rahman.’ ” The panel majority does not weigh in on this finding. But Judge Walker does: “This is wrong. One does not need a law license in order to materially support terrorism or to defraud the U.S. government.” I agree with Judge Walker.² One can assist terrorism in many ways, few of which require a license to practice law. While the abuse of her law license is a basis for enhancing Stewart’s sentence, its loss is not a basis for a reduction, at least with respect to the likelihood of recidivism. And as set forth below, Stewart is reported as having expressed the view that she would do what she did again, but “might handle it a little differently” to evade detection. So for her, supporting and promoting terrorism remains acceptable; everything else (law license or not) is technique.

Ill

Notwithstanding the foregoing discussion, I have voted against in banc review at this juncture for the following reasons.

[A] The panel majority opinion makes no law with which I disagree. It identifies one procedural error, which I agree is an error; it encourages the district court to consider the errors identified by Judge Walker, as I do; it declines to reach substantive error without, however, purporting to bind other panels to do the same. In my view, the panel majority opinion is a missed opportunity, and fails to give the district court sufficient guidance. But it does not make law for other cases; it scarcely makes law of the case.

[B] This appeal was under consideration by the panel for two full years; additional lengthy delay would be an institutional disservice. The district court docket reflects that the process of resentencing has been put in motion so that it can take place with conscientious speed following tile issuance of our mandate. Stewart and her family are entitled to know what her sentence ultimately will be within the half-decade following her conviction.

[C]When our remand “effectively undoes the entire ‘knot of calculation’ ” that fixed the original sentence, “ ‘the spirit of the mandate’ requires de novo sentencing.” United States v. Rigas, 583 F.3d 108, 118 (2d Cir.2009). Following such a remand, the “district court [i]s required to resentence [a defendant] in light of the circumstances as they st[and] at the time of [ ] resentencing.” Werber v. United States, 149 F.3d 172, 178 (2d Cir.1998). Since circumstances have changed in the prolonged interval following imposition of the original sentence, the district court should have the opportunity to consider any developments in the first instance.

Media reports (which require skeptical vetting) reflect that Stewart has promoted her criminal conduct as a matter of principle and as an aspirational norm of ethical law practice. After her conviction and sentencing, Stewart participated in a law school conference, “Legal Ethics: Lawyering at the Edge, Unpopular Clients, Difficult Cases, Zealous Advocates.” It attracted “a standing-room crowd of 150 people, most of them law students”:

[Stewart] admitted to having been “cavalier” in the way she followed certain regulations governing communications with her client, but argued that the human bond between a lawyer and client is critical to the lawyer’s role as legal adviser.

“I was representing a client, and I would do it again, but I would do it in a way that would better insulate me,” she said. Her main regret was having been unaware that the government was secretly taping her conversations with Mr. Rahman, she said.

Paul Vitello, Hofstra Polite as Lawyer Guilty in Terror Case Talks on Ethics, N.Y. Times, October 17, 2007, at B3 (correction appended) (“N.Y. Times article”). If accurately reported, these comments call into doubt the district court’s finding that Stewart’s offense is an aberration in an otherwise admirable career. In addition, these comments seek to corrupt the young by enlisting law students in the project of degrading legal practice.³

Moreover, on the day before she was remanded to prison, Stewart gave a radio interview in which she was asked: “[Wjould you do anything differently today, would you do anything differently back then, if you knew what you kn[o]w today?” Stewart responded, in part: “I would do it again. I might handle it a little differently, but I would do it again.” Interview by Amy Goodman, Host, Democracy Now!, with Lynne Stewart, in New York, N.Y. (Nov. 18, 2009), available at http://www.democracynow.org/2009/ll/18/ exclusive_civil_rights_attorney_lyime_ stewart.

I am not in a position to make findings on these points, but in my view the district court should consider these additional circumstances at Stewart’s resentencing.⁴ Indeed, section 3553(a) requires the district court to “impose a sentence, sufficient but not greater than necessary, to comply with [enumerated] purposes” including “the need for the sentence imposed ... to promote respect for the law.” 18 U.S.C. § 3553(a)(2)(A). Stewart’s comments— that she readily would repeat her offense, taking care only to evade detection — also illuminate “the nature and circumstances of the offense” and “the history and characteristics of the defendant.” Id. § 3553(a)(1). On remand, the district court may wish to explore and consider Stewart’s post-conviction and post-sentencing comments as part of the section 3553(a) analysis.

[D] Finally, the issue of substantive reasonableness may be obviated or mitigated following the district court’s correction of the procedural error identified by the panel majority, the district court’s consideration of the procedural and substantive errors identified by Judge Walker (and underscored in part in this opinion and in the accompanying opinion dissenting from the denial of rehearing in banc), and the district court’s findings as to subsequent developments. In any event, these matters will affect the analysis. And this Court may have an opportunity after remand to reach issues that are not decided by the panel majority.

1 . The panel majority opinion states: “Whether or not the district court applied the terrorism enhancement to Stewart in its Guidelines calculation may be subject to disagreement.” However, it is clear that the district court applied the terrorism enhancement in its initial Guidelines calculation; it determined a total offense level of 41, a criminal history category of VI, and a Guidelines sentence of 360 months. It is also clear that the district court later dissipated the terrorism enhancement based primarily on (i) the lack of harm resulting from Stewart's offense and (ii) the notion of atypicality. The district court thereby erred (whether procedurally, substantively, or both), when it effectively eliminated the terrorism enhancement based on considerations that seem highly dubious for the reasons forcefully stated in Judge Walker's dissent. Cf. United States v. Ressam, 593 F.3d 1095 (9th Cir.2010) (in a terrorism case, r-emanding as procedurally defective a 22-year sentence on the ground, inter alia, that the district court was insufficiently cognizant of the Guidelines range of 65 years to life).

2 . Based in part on the district court's finding regarding recidivism, Judge Walker identifies procedural error in the district court's overvaluation of Stewart’s personal characteristics in the context of the section 3553(a) analysis: "In sum, though we will rarely identify procedural error in the weight a sentencing judge assigns to relevant factors, this is one of those rare cases where the record of a defendant's personal characteristics simply cannot bear the weight necessary to support the challenged sentence.” In footnote two of the panel concurrence, Judge Calabresi observes that "the amount of weight a particular factor can bear” is "normally considered [a] substantive judgment!].” I express no view as to whether the error identified by Judge Walker regarding the loss of Stewart's law license is procedural or substantive. But error it is; and this factor illustrates my earlier point that the two kinds of error are permeable.

3 . The law school put out that Stewart was invited to the conference as a “unique case study” rather than as “an expert in ethics.” Hofstra Law, http://law.hofstra.edu/NewsAnd Events/Conferences/EthicsConference/2007/ index.html (last visited Jan. 11, 2010). That distinction was evidently lost on her. In fairness to the students, her reception was said to be cool, and Nathan Samuel, then a second-year law student, walked out midway through Stewart’s address, returning only to pose an aggressive question. See N.Y. Times article.

4 . Stewart has thus repeatedly affirmed that she would do it again. So much for Judge Calabresi's inventive idea that the district court might consider on remand that the terrorism enhancement should be abated for offenses committed before September 11, 2001, when the enormity of terrorism may not have been fully appreciated. Since the panel majority invites the district court to consider this possibility, it is worth a footnote to show that Stewart herself has not had an epiphany. Indeed, it is hard to identify anyone in this country who would have discounted terrorism after the Beirut barracks, Khobar Towers, the embassy bombings, the 1993 World Trade Center attack, Oklahoma City, the U.S.S. Cole, and the conspiracy to blow up the New York Federal Building and the tunnels into Manhattan.

1 . The maximum sentence available is 180 months per MS count. See 18 U.S.C. §§ 2339A(a), 2339B(a)(l). We assume for purposes of this opinion that the terms were ordered to be served concurrently.