[Ppnews] Perjury Charge Is Focus of Debate Over Lynne Stewart Resentencing

[Political Prisoner News]

Perjury Charge Is Focus of Debate Over Lynne Stewart Resentencing

Mark Hamblett
New York Law Journal

http://www.law.com/jsp/article.jsp?id=1202462743367&Perjury_Charge_Is_Focus_of_Debate_Over_Lynne_Stewart_Resentencing

June 16, 2010

Prosecutors and defense lawyers have now weighed in on the critical 
question facing Southern District of New York Judge John J. Koeltl 
when he resentences Lynne Stewart on July 15: whether the disbarred 
defense lawyer perjured herself at her 2005 trial for providing 
material support to a terrorist conspiracy.

Both sides have filed extensive sentencing materials with the judge, 
whose decision to give Stewart, 70, only 28 months in prison for 
helping her imprisoned client, Sheik Omar Abdel Rahman, communicate 
with the outlaw Islamic Group in Egypt, was 
<http://www.law.com/jsp/article.jsp?id=1202435572256>vacated last 
year as too light by the 2nd U.S. Circuit Court of Appeals.

Southern District Assistant U.S. Attorneys Andrew S. Dember and 
Michael D. Maimin, in a 155-page memorandum, say Stewart perjured 
herself several times, most notably when she said a "bubble" 
protected her as an attorney when she smuggled out of prison in June 
2000 a statement by the sheik withdrawing his support for a 
cease-fire on violent attacks by Islamic Group.

Read the prosecution's 
<http://www.nylj.com/nylawyer/adgifs/decisions/061610us_stewart.pdf>sentencing 
memorandum.

"The evidence at trial irrefutably proved that Stewart knew that she 
was committing perjury by offering such testimony," the prosecutors 
argue in their memo.

They say Stewart's sentence should be increased dramatically both 
because of her perjury and because of a terrorism enhancement in the 
federal sentencing guidelines that Koeltl technically applied, but 
did not enforce. The terrorism enhancement drives the guidelines 
figure up to the statutory maximum of 30 years in prison.

Defense lawyers Elizabeth M. Fink and Jill R. Shellow counter in 
their papers by calling Koeltl's initial sentence "reasonable and just."

Read Fink's 
<http://www.nylj.com/nylawyer/adgifs/decisions/061610fink_stewart.pdf>filing 
and the defense 
<http://www.nylj.com/nylawyer/adgifs/decisions/061610memo_stewart.pdf>sentencing 
memorandum.

They argue that Stewart was being truthful when she claimed there was 
a "bubble" or exception to special administrative prison measures 
preventing the sheik from getting or sending messages, and that 
Stewart did not perjure herself when she denied having known, at the 
time of her offense, the leader of a violent faction within Islamic Group.

Fink and Shellow said Koeltl properly exercised his discretion when 
he found that, while the terrorism enhancement applied, the 
30-year-prison term it triggered was "dramatically unreasonable" and 
"overstated the seriousness" of her conduct.

"Moreover, this court's determination to grant a variance from the 
guideline sentence based in part on the unreasonable effect of the 
terrorism enhancement as applied to Stewart was reasonable and 
proper, and is an approach that has been approved by other courts," they said.

Stewart's sentence 
<http://www.law.com/jsp/article.jsp?id=1202435617152>caused turmoil 
at the circuit, as a two-judge majority of Judges Robert D. Sack and 
Guido Calabresi held they could not determine whether the sentence 
was substantively reasonable because Koeltl had declined to make a 
finding on perjury. The court nonetheless ordered Stewart to begin 
serving her sentence immediately.

In dissent, Judge John M. Walker was angry at the majority for 
reversing on a narrow ground a prison term he called "breathtakingly 
low" considering Stewart's "extraordinarily severe criminal conduct." 
Walker said it was plain the court should have vacated the sentence 
as substantively unreasonable.

The panel <http://www.law.com/jsp/article.jsp?id=1202437276867>issued 
an amended opinion on Dec. 20 with tougher language calling for 
Koeltl to revisit his treatment of the terrorism enhancement.

But that was not the end of it, as one circuit judge called for a 
rehearing en banc. The motion lost by a vote of 7-4, but some judges 
issued opinions that, like Walker, faulted Koeltl for taking into 
consideration that "no victim was harmed" when Stewart issued the 
press release.

Judge Jose A. Cabranes 
<http://www.law.com/jsp/article.jsp?id=1202444418121>issued an 
opinion accusing the two-judge majority panel of "punting" on the 
biggest issues in the case.

ENHANCED SENTENCE

Stewart was convicted on Feb. 10, 2005, of conspiracy to defraud the 
United States; conspiracy to provide and conceal the provision of 
material support to a conspiracy to kill persons in a foreign 
country; providing and concealing the provision of material support 
to the conspiracy to kill persons in a foreign country; and making 
false statements to the U.S. Department of Justice and the Bureau of Prisons.

The "material" she provided came in the form of personnel -- the 
sheik himself, who was supposed to be walled off from any contact 
with the Islamic Group through the use of Special Administrative 
Measures. Stewart and one of her co-defendants, Mohammed Yousry, 
signed affirmations promising to abide by the restrictions.

Koeltl pronounced sentence in 2006 and Stewart afterwards crowed 
outside the courthouse that she could do the 28 months "standing" on 
her "head."

Messrs. Dember and Maimin, in their memo, said Stewart's invocation 
of a "bubble" in spite of these signed affirmations was exposed 
during cross-examination as "a fabrication created for trial to 
attempt to justify her criminal conduct."

They say cross-examination also revealed that Stewart was well aware 
of violent acts committed by Islamic Group, including the 1997 
massacre of 58 tourists and security guards at an archeological site 
in Luxor, Egypt.

Also undermined during cross examination, they say, was Stewart's 
claim that she was merely providing the sheik with zealous 
representation when she smuggled the messages from the prison.

"The evidence at trial established that Stewart intentionally and 
knowingly assisted in a terrorist murder conspiracy; that she was 
motivated to do so by her beliefs and ideology; and that her crimes 
included the defrauding of, and making repeated false statements to, 
the United States government," they write.

The prosecutors said they were aware there were mitigating factors 
that might lead Koeltl to impose a sentence of less than 30 years, 
but they asked for a sentence that "substantially exceeds" the 
original. They did not specify those factors.

The prosecutors say they will make a more definite recommendation for 
the term Stewart should receive after they review her papers.

Fink and Shellow argue in their papers that Stewart was not lying 
about the "bubble" because the government had allowed her and other 
attorneys for the sheik to "operate in much the same way as Stewart 
without consequence" for over three years, and the government 
permitted Stewart to visit her client long after she issued the 2000 
news release.

The defense attorneys cited a number of other terrorism cases where 
defendants have received sentences of between seven and 92 months 
imprisonment in spite of being eligible for the terrorism enhancement.

"In contrast to Ms. Stewart, many of these defendants expressed a 
willingness or desire to promote or participate in violence, and many 
of their crimes involved the negotiation for or provision of 
weapons," they say.

The attorneys urged Koeltl to stand firm and continue to exercise the 
broad discretion he has in sentencing.

"This is particularly important in terrorism cases, where in a post- 
9/11 context, our sentiments are inflamed," they said. "We are angry, 
and rightly so, at defendants who are convicted of terrorism related crimes.

"The judges of the Second Circuit are clearly angry," Fink and 
Shellow write. "Many of them believe that Ms. Stewart deserves a 
lengthy sentence. But Ms. Stewart's sentence is not before them" and 
Judge Koeltl is in the "best position" to analyze the case.





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