[Ppnews] Perjury Charge Is Focus of Debate Over Lynne Stewart Resentencing
Political Prisoner News
ppnews at freedomarchives.org
Fri Jun 18 10:08:44 EDT 2010
Perjury Charge Is Focus of Debate Over Lynne Stewart Resentencing
New York Law Journal
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
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
"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."
and the defense
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.
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
Judge Jose A. Cabranes
opinion accusing the two-judge majority panel of "punting" on the
biggest issues in the case.
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
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
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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