06-5015 | Omnilex

Testo completo

06-5015-cr (L)
United States v. Sattar (Stewart; Yousry)

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2007

(Argued: January 29, 2008
Decided: November 17, 2009
As Amended: December 23, 2009) *

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

UNITED STATES OF AMERICA,
Appellee-Cross-Appellant,

\- V. -
LYNNE STEWART, MOHAMMED YOUSRY, AHMED ABDEL SATTAR,
Defendants-Appellants-Cross-Appellees.

Before:
WALKER, CALABRESI, and SACK, Circuit Judges.

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

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restrict his communications with terrorist organizations and
their members. The defendants were convicted principally with
respect to their violations of those measures by which they had
agreed to abide. The government cross appeals, challenging the
reasonableness of the defendants' sentences. We affirm the
judgments except with respect to the sentencing of defendant
Lynne Stewart, and remand all three cases to the district court.
The district court is directed to revoke Stewart's and Yousry's
bail pending appeal and to order them to surrender to the United
States Marshal to begin serving their sentences forthwith as
directed by the district court.

Judge Calabresi concurs, and also files a separate
concurring opinion. Judge Walker concurs in part and dissents in
part in a separate opinion.

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

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

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

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

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

SACK, Circuit Judge:

Defendants Lynne Stewart, Mohammed Yousry, and Ahmed
Abdel Sattar appeal from judgments of conviction of the United
States District Court for the Southern District of New York
(John G. Koeltl, Judge) for various crimes arising from their
contacts with and behavior relating to government restrictions on
communications and other contacts with Sheikh Omar Ahmad Ali
Abdel Rahman. Rahman is serving a life sentence in a maximum
security prison for terrorism-related crimes of seditious
conspiracy, solicitation of murder, solicitation of an attack on
American military installations, conspiracy to murder, and a
conspiracy to bomb. He is subject to "Special Administrative
Measures" ("SAMs") restricting his ability to communicate with
persons outside of the prison in which he is incarcerated so as
to prevent him from continuing to lead terrorist organizations
and their members. The government cross-appeals from the
defendants' sentences.

We would be remiss if we did not, at the outset,
commend the district court for its thoroughness, thoughtfulness,
and effectiveness in the conduct of these unusually lengthy,
difficult, and sensitive proceedings. Much of what follows
simply reports what it did and tracks what it said.

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We affirm the judgments of conviction. We also affirm
the sentences of Yousry and Sattar. We remand the case, however,
with respect to the sentence of Stewart, and also with respect to
the sentences of Yousry and Sattar in light of the resentencing
of Stewart.

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

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

We affirm as to Stewart's and Yousry's convictions of
providing and concealing material support to the conspiracy to
murder persons in a foreign country in violation of 18 U.S.C.

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

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

We reject the remaining challenges to the convictions.
We affirm the district court's rejection of Sattar's vindictive
prosecution claim because there is insufficient evidence to
support a finding that the government's pre-trial decision to add
new charges against Sattar amounted to an effort to punish him
for exercising his constitutional rights. And, because Stewart's
conduct was materially different from, and more serious than, the
conduct of other lawyers representing Abdel Rahman who may also
have violated the SAMs, we affirm the district court's rejection
of Stewart's claim that she was selectively prosecuted on account

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of her gender or political beliefs. We also conclude that the
district court did not abuse its discretion in declining to sever
the trial of Stewart and Yousry from that of Sattar in light of
the general preference for joint trials, the specific charges at
issue here, and the district court's curative instructions. Nor
did the district court abuse its discretion by empaneling an
anonymous jury in light of the particular allegations of criminal
wrongdoing at issue, involving the corruption of the judicial
process, and the widespread publicity about the case. We find no
fault with the district court's resolution of allegations of
juror impropriety. We also agree with the district court's
treatment of confidential information, including its denial of
Stewart's motion to suppress evidence obtained pursuant to the
Foreign Intelligence Surveillance Act ("FISA"), its ex parte, in
camera examination of FISA wiretap applications, and its
rejection of Stewart's more general challenges to the
constitutionality of FISA. Finally, we find no fault with the
district court's treatment, in accordance with the Classified
Information Procedures Act ("CIPA"), of Stewart's motion to
compel disclosure of information related to potential
surveillance conducted by the National Security Agency.

We therefore affirm the convictions in their entirety.

We also affirm the sentences of Sattar and Yousry. We
conclude that the district court committed neither procedural
error in calculating the applicable Guidelines ranges, nor
substantive error in varying from those ranges pursuant to its

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consideration of the factors set forth in 18 U.S.C. § 3553 (a) .

We nonetheless remand their cases to the district court to allow
it to reconsider their sentences should it choose to do so in
light of the resentencing of Stewart.

We cannot affirm Stewart's sentence on the basis of the
record before us. Because the district court declined to find
whether Stewart committed perjury at trial, we cannot conclude
that the mitigating factors found to support her sentence can
reasonably bear the weight assigned to them. This is so
particularly in light of the seriousness of her criminal conduct,
her responsibilities as a member of the bar, and her role as
counsel for Abdel Rahman. We therefore remand the cause to the
district court for further consideration of her sentence, in
light of, among other things, the charges of perjury against her
and of any other matter it deems necessary or advisable, and
direct the court to revoke Stewart's and Yousry's bail pending
appeal and to order them to surrender to the United States
Marshal to begin serving their sentences forthwith.

# BACKGROUND

The transcript of the trials in the cases on appeal
runs in excess of thirteen thousand pages. The district court
issued nine opinions and a wide variety of orders addressing
issues presented during the course of the proceedings. See
principally, United States v. Sattar, 272 F. Supp. 2d 348
(S.D.N. Y. 2003) ("Sattar I") ; United States v. Sattar, No. 02
Cr. 395 (JGK), 2003 WL 22137012, 2003 U.S. Dist. LEXIS 16164

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1
(S. D.N.Y. Sept. 15, 2003) ("Sattar II") ; United States v. Sattar,
314 F. Supp. 2d 279 (S.D.N.Y. 2004) ("Sattar III") ; United States
2

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v. Sattar, 395 F. Supp. 2d 66 (S.D.N.Y. 2005) ("Sattar IV") ;
United States v. Sattar, 395 F. Supp. 2d 79 (S.D.N.Y. 2005)

("Sattar V") .1 The filings in this Court reflect the massiveness
of the record.2 We therefore describe the proceedings in the
district court and the relevant facts only in the detail we think
necessary to explain our decision. In reviewing the conviction,
we set forth the facts, as we must, in the light most favorable
to the government. See United States v. Aleskerova, 300 F.3d
286, 292 (2d Cir. 2002) .

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The SAMs

In October 1995, Sheikh Omar Ahmad Ali Abdel Rahman was
convicted of a variety of terrorism-related crimes in the United
States District Court for the Southern District of New York.

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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) .

Abdel Rahman, a blind Islamic scholar and
cleric, was the leader of [a] seditious
conspiracy, the purpose of which was "jihad, "
in the sense of a struggle against the
enemies of Islam. Indicative of this
purpose, in a speech to his followers Abdel
Rahman instructed that they were to "do jihad
with the sword, with the cannon, with the
grenades, with the missile . . . against
God's enemies." Abdel Rahman's role in the
conspiracy was generally limited to overall
supervision and direction of the membership,
as he made efforts to remain a level above
the details of individual operations.

However, as a cleric and the group's leader,
Abdel Rahman was entitled to dispense fatwas,
religious opinions on the holiness of an act,
to members of the group sanctioning proposed
courses of conduct and advising them whether
the acts would be in furtherance of jihad. [3]

United States v. Rahman, 189 F.3d 88, 104 (2d Cir. 1999) (per
curiam) , cert. denied, 528 U.S. 1094 (2000) (citations omitted) .
The crimes of conviction included soliciting the murder of
Egyptian President Hosni Mubarak while he was visiting New York
City; attacking American military installations; conspiring to
murder President Mubarak; conspiring to bomb the World Trade
Center in 1993, which succeeded; conspiring subsequently to bomb
various structures in New York City, including bridges, tunnels,
and the federal building containing the New York office of the
Federal Bureau of Investigation ("FBI") , which did not succeed;
and conspiring to commit crimes of sedition. Id. at 103-04, 107-

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") .

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incarcerated for the remainder of his life. Id. at 148.
Following his conviction and appeal therefrom, Abdel Rahman's
legal team focused on two goals: improving his conditions of
confinement, and obtaining his transfer from prison in the United
States to Egypt.

The government asserts that Abdel Rahman was linked to
various other acts of violence: He is said to be, or to have
been, a spiritual leader of what the indictment in the instant
prosecution refers to as "'al-Gama'a al-Islamiyya, ' a/k/a 'al-
Gama'at, ' a/k/a 'Islamic Gama'at, ' a/k/a 'Egyptian al-Gama'at al-
Islamiyya'" (hereinafter, "al-Gama'a"), also referred to by the
district court and the parties in English as the "Islamic Group"
or "IG. " See Superseding Indictment | 8. Al-Gama'a was
designated a foreign terrorist organization ("FTO") by the United
States Secretary of State in 1997 pursuant to 8 U.S.C. § 1189,
see Notices, Designation of Foreign Terrorist Organizations,
Department of State, Office of the Coordinator for

Counterterrorism, 62 Fed. Reg. 52650 (Oct. 8, 1997), was

redesignated an FTO in 1999 and 2001, see Notices, Designation of
Foreign Terrorist Organizations, Department of State, Office of
the Coordinator for Counterterrorism, 64 Fed. Reg. 55112 (Oct. 8,
1999) ; Notices, Redesignation of Foreign Terrorist Organization,

Department of State, Office of the Coordinator for
Counterterrorism, 66 Fed. Reg. 51088 (Oct. 5, 2001), and remains
so designated today, see Foreign Terrorist Organizations, Fact
Sheet, Department of State, Office of the Coordinator for

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Counterterrorism (Apr. 8, 2008), available at

http://www.state.gov/s/ct/rls/fs/08/103392.htm (last visited Mar.
28, 2009) .

"Federal regulations provide that the Bureau of Prisons
may implement SAMs, ' [u]pon direction of the Attorney General, '
when 'reasonably necessary to protect persons against the risk of
death or serious bodily injury.' 28 C.F.R. § 501.3 (a) ." In re
Basciano, 542 F.3d 950, 954 (2d Cir. 2008) (alteration in
original), cert. denied, 128 S. Ct. 1401 (2009). The Bureau of
Prisons, following Abdel Rahman's remand to its custody in August
1997, imposed severely restrictive SAMs upon him. They were
designed to prevent him from directing or facilitating yet more
violent acts of terrorism from his prison cell. The SAMs have
been renewed, and sometimes modified, every 120 days since they
were first imposed.

The May 11, 1998, SAMs applicable to Abdel Rahman
"prohibited [him] from having contact with
others (except
as noted in this document) that could foreseeably result in [his]
communicating information (sending or receiving) that could
circumvent the SAM intent of significantly limiting [his] ability
to communicate (send or receive) terrorist information." SAMs of
May 11, 1998, 1 3. To enforce this general prohibition, the
measures regulated Abdel Rahman's telephone contacts, id. | 4,
his mail, id. | 5, and his visitors' visits, id. | 6. The
measures limited his telephone contacts solely to his attorneys
of record and his wife, id. | 4 (a), and prevented matters

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discussed in those calls from being "divulged in any manner to
any third party, " id. | 4 (c) (i). The measures required the
screening of all his outgoing and incoming non-legal mail, id. 1
5, and prohibited him from "talk[ing] with, or otherwise
communicat [ing] with, any representative of the news media, "
including "through [his] attorney (s) /staff, or otherwise, " id.

1 8. The measures also provided for the monitoring of all non-
legal visits. Id. 1 6. On the condition that his attorneys
would not divulge any information to third parties, Abdel Rahman
was permitted to communicate with his legal team by telephone,
id. [{ 4 (a) & 4 (d), mail, id. [ 5 (a), and in person, id. 1 6,
with fewer restrictions than with other persons. Members of this
legal team included lawyers Ramsey Clark, Abdeen Jabara, Lawrence
Schilling, and defendant Lynne Stewart.

Subsequent versions of the SAMs retained similar
prohibitions and screening mechanisms including the prohibition
against communications with the news media. See, e.g., SAMs of
Apr. 7, 1999, 1 9; SAMs of Dec. 10, 1999, 1 9. They retained
similar provisions regarding legal communications, and
incorporated provisions requiring Abdel Rahman's attorneys to
sign affirmations acknowledging their receipt of the version of
the SAMs in effect. See, e.g., SAMs of Apr. 7, 1999, 1 4; SAMs
of Dec. 10, 1999, 1 4. By virtue of those affirmations, counsel
agreed to abide by the terms of SAMs then in effect. See, e.g.,
Unsigned Affirmation of Abdeen Jabara, Apr. 2000; Unsigned
Affirmation of Ramsey Clark, Apr. 2000; Affirmation of Ramsey

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Clark, Jan. 10, 2001; Affirmation of Abdeen Jabara, Jan. 10,
2001; Affirmation of Ramsey Clark, Apr. 24, 1997.

Stewart repeatedly executed such statements. On May 1,

1998, she signed a document entitled "Attorney Affirmation, " in
which she affirmed, under penalty of perjury, the truth of
specified statements regarding the then-applicable SAMs: that she
had read the May 11, 1998, version of the SAMs; that she

"underst [ood] the restrictions contained in that document and

agree [d] to abide by its terms"; that during her visits to Abdel

Rahman she would "employ only cleared translators/interpreters
and [would] not leave [any] translator/interpreter alone with

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May 16, 2000; Affirmation of Lynne Stewart, May 7, 2001.

inmate Abdel Rahman"; and that she would "only be accompanied by
translators for the purpose of communicating with inmate Abdel
Rahman concerning legal matters." Affirmation of Lynne Stewart,
May 1, 1998. Stewart also affirmed that neither she nor any
member of her office would "forward any mail received from inmate
Abdel Rahman to a third person" nor would she "use [her]
meetings, correspondence or phone calls with Abdel Rahman to pass
messages between third parties (including, but not limited to,
the media) and Abdel Rahman." Id. On May 16, 2000, and again on
May 7, 2001, Stewart signed similar affirmations under penalty of
perjury, again affirming that she had read the most recent
versions of the SAMs, and that she would not use her contact with
Abdel Rahman to pass messages between him and third parties,
including members of the media. Affirmation of Lynne Stewart,

Defendant Mohammed Yousry, a middle-aged New York

University graduate student who served as one of the legal team's
translators had also been, in that capacity, a member of Abdel
Rahman's trial team. As a translator, Yousry was permitted to
read to Abdel Rahman, who is blind, and to take dictation from
him.

Various members of the team, including Stewart and
Yousry, also maintained contact with defendant Ahmed Abdel
Sattar, who had served as a paralegal during Abdel Rahman's
trial. The evidence established that Sattar was in continual
contact with various members of al-Gama'a abroad. See, e.g.,
Transcript of Conversation between Ahmed Abdel Sattar and Rifa'i
Ahmad Taha Musa, May 9, 2000.

The Visits to Abdel Rahman

Sometime in 1997, more than three years after Abdel
Rahman was taken into federal custody, a faction of al-Gama'a
declared a unilateral "cease-fire," i.e., a halting of violent
operations, in Egypt. When the cease-fire was first announced,
Abdel Rahman was understood to support it.

In November 1997, despite the cease-fire, a group
associated with al-Gama'a attacked, killed, and mutilated the
bodies of more than sixty tourists, guides, and guards at the
Hatshepsut Temple in Luxor, Egypt. Rifa'i Taha Musa ( "Taha") --
a military leader of al-Gama'a, a follower of Abdel Rahman, and
an unindicted co-conspirator herein -- was involved in the

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incident.4 Alaa Abdul Raziq Atia ("Atia"), later a leader of
al-Gama'a's military wing in Egypt, was also involved in the
killings. Al-Gama'a later claimed responsibility for the attack
and demanded Abdel Rahman's release from prison in the United
States.

In January 1998, Abdel Rahman was assigned by the
Bureau of Prisons to the Federal Medical Center in Rochester,
Minnesota ("FMC Rochester") . In March 1999, Stewart and Yousry
visited him there. Prior to the visit, Stewart signed and
delivered to the United States Attorney's Office for the Southern
District of New York a document in which she affirmed, under
penalty of perjury, that she would abide by the SAMs imposed by
the Bureau of Prisons on Abdel Rahman.

At about this time, defendant Sattar was in contact
with members of al-Gama'a, who were divided over their support
for what remained of the cease-fire. Pro-cease-fire and anti-
cease-fire factions developed, and members of the organization
wanted Abdel Rahman to take a position on the matter. To that
end, several wrote messages addressed to Abdel Rahman, which they
sent to Sattar for delivery to Abdel Rahman. Sattar gave the
messages to Stewart and Yousry, who surreptitiously brought the
messages with them to Abdel Rahman during a subsequent visit in
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.

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Yousry read the messages to Abdel Rahman during the
visit, and Abdel Rahman dictated to Yousry responses to some of
them. Yousry and Stewart then smuggled the responses out of FMC
Rochester among their legal papers, and sent them to Sattar. As
directed by Abdel Rahman, Sattar informed various members of al-
Gama'a that Abdel Rahman was willing to reconsider the
effectiveness of the cease-fire and had rejected the associated
idea that al-Gama'a should form a political party in Egypt.

News of Abdel Rahman's purported position spread. But
some members of the media in the Middle East expressed skepticism
about the veracity of Sattar's representations, questioning
whether they in fact came from Abdel Rahman or whether Sattar had
fabricated them himself. To refute those reports, Sattar and
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Yousry asked one of Abdel Rahman's lawyers, former United States
Attorney General Ramsey Clark, to tell a reporter for an Arabic-
language newspaper that Abdel Rahman opposed al-Gama'a's
formation of a political party. Clark, they thought, would be
perceived as more authoritative than Sattar. Clark eventually
agreed to talk to the reporter. He told the reporter that " [t]he
Sheikh has said he believes that the formation of a new political
party to engage in politics in Egypt at this time is
not
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correct and should not be done." Transcript of Conversation

between Ahmed Abdel Sattar, Mohammed Yousry, Ramsey Clark, and
Muhammad Al-Shafi'i, Nov. 5, 1999, at 15.

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In September 1999, Farid Kidwani, the then-leader of
al-Gama'a's military wing, was killed along with three other

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members of the group in a shootout with Egyptian police.
Kidwani's death precipitated further tension and debate within
al-Gama'a regarding the advisability and efficacy of the cease-
fire.

Taha sent another message to Sattar to be relayed to
Abdel Rahman urging Abdel Rahman to support the termination of
the cease-fire and noting that Taha and his associates needed a
"powerful word" from Abdel Rahman to achieve this goal. Taha
told Sattar that such support from Abdel Rahman would "strengthen
me among the brothers." Sattar agreed to send the message to
Abdel Rahman and prepared a letter to Abdel Rahman for that
purpose. In mid-September 1999, Clark and Yousry surreptitiously
took the letter, along with newspaper articles relating to the
killing of Kidwani in Egypt, with them during a visit to Abdel
Rahman in FMC Rochester. Yousry read the letter and newspaper
clippings aloud to Abdel Rahman. From these documents, Abdel
Rahman first learned of Kidwani's death.

Abdel Rahman dictated a letter to Yousry in response.

To those against whom war is made, permission
is given to fight, because they are wronged
(oppressed) -- and verily God is most

powerful for their aid. . . . The latest
thing published in the newspapers was about
the Egyptian regime's killing of four members
of the Group. This is . . . enough proof

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that the Egyptian regime does not have the
intention to interact with this peaceful
Initiative [i.e., the cease-fire] which aims
at unification. I therefore demand that my
brothers, the sons of [al-Gama'a] do a
comprehensive review of the Initiative and
its results. I also demand that they
consider themselves absolved from it.

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Transcript of Conversation between Ahmed Abdel Sattar and Rifa'i
Ahmad Taha Musa, Sep. 20, 1999, at 6-7 (emphasis omitted,
parenthetical in original). Sattar expected Clark to make a
public statement to similar effect, but Clark declined to do so.

On February 18 and 19, 2000, Yousry and Abdeen Jabara,
an Arabic-speaking lawyer and member of Abdel Rahman's legal
team, visited Abdel Rahman at FMC Rochester. They brought with
them another letter which included another message from Taha,
again asking for Abdel Rahman's support for ending the cease-
fire. But Jabara would not permit Abdel Rahman to dictate a
letter to Yousry in response. And, notwithstanding pressure from
Sattar and Taha, Jabara, like Clark before him, refused to issue
any public statement regarding Abdel Rahman's position on the
matter.

On May 16, 2000, defendant Stewart signed another
affirmation that she and her staff would abide by the SAMs. She
did not submit that affirmation to the United States Attorney's
Office until May 26.

On May 18, 2000, Stewart met with Sattar, who gave her
more letters for Abdel Rahman, including another message from
Taha yet again seeking Abdel Rahman's approval of an end to the
cease-fire. Taha asked Abdel Rahman to take a "more forceful
position" regarding the end of the cease-fire and to "dictate
some points we can announce in a press conference with Lynne."
Transcript of Second Audiovisual Recording involving Omar Abdel

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Rahman, Mohammed Yousry, Lynne Stewart, and others, May 19, 2000,
("Video Tr. May 19, 2000, Tape 2") , 5 at 36.

On May 19 and 20, 2000, Stewart and Yousry visited
Abdel Rahman, taking Sattar's most recent letters with them,
including the letter containing the message from Taha.

Unbeknownst to them, the government, pursuant to a warrant,
videotaped the meetings. Yousry told Abdel Rahman that Abu
Sayyaf -- an Islamic terrorist group in the Philippines -- had
taken hostages to be used in bargaining for the release of Abdel
Rahman and others. When Yousry explained to Stewart that he was
"telling the Sheikh about the Abu Sayyaf group in the
Philippines" and how "they took hostages, " Stewart replied, "Good
for them." Transcript of First Audiovisual Recording involving
Omar Abdel Rahman, Mohammed Yousry, and Lynne Stewart, May 19,
2000, at 27.

From the beginning of the visit, Stewart was aware of
the prison guards' presence. For example, she asked Yousry, "Do
they usually sit like this and watch us?" Id. at 10. And during
this meeting, Stewart and Yousry took overt steps to ensure that
the nature of their communication with Abdel Rahman would be
concealed from the prison guards. As she suggested to Yousry,
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."

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Id. at 11. When the guards were standing close to the window of
the conference room in which Abdel Rahman, Stewart, and Yousry,
were meeting Yousry told Stewart to "look at me and talk a little
bit because they are watching us closely." Id. at 51. While
Yousry read the message to Abdel Rahman, Stewart uttered a
meaningless series of phrases to Yousry so that it would appear
to an observer as though she was taking part in a three-way
conversation: "I am talking to you about. . . him going to have
a, uh, chocolate eh
heart attack here
Why don't

you stop a minute now. And (UI)6 say to him that, you know, 'You
understood what we are saying, (UI) . '" Id. As Stewart spoke,

Yousry said to Abdel Rahman, "I don't know, Sir, they are
standing very close by the glass.
Lynne says, (UI) when
they look, you look at me a little, talk, then look at the
Sheikh. " Id.

Stewart continued to talk while Yousry read aloud
Taha's statement in Sattar's letter. Yousry explained to Abdel
Rahman that "Lynne just says anything, [laughing] (UI) Sir." Id.
at 52 (bracketed material in original) . Stewart remarked, "I can
get an academy award for it." Id.

Stewart and Yousry then had this exchange:

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

6
"UI" stands for "unintelligible. "

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

YOUSRY: [Laughs] In trouble.

STEWART: [Laughing] Yeah, that's right.

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

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finished reading Taha's message to Abdel Rahman, he returned it
to a notebook that he had brought with him and with which he
left.

On the second day of the same visit, Abdel Rahman
dictated to Yousry, among other things, a letter to an al-Gama'a
lawyer who favored the cease-fire, asking him to allow others in
al-Gama'a to criticize it, and another to Taha asking him to
"escalate the language" of criticism of the cease-fire. Video
Tr. May 20, 2000, Tape 2, at 32.

Meanwhile, Stewart and Yousry continued to engage in
what Stewart later called " [c]overing noises, " Video Tr. July 13,
2001, Tape 2, at 12, and other tactics designed to obscure the
nature of what they were doing. After one such incident, Yousry
explained to Abdel Rahman, " [S]he just has to say that in order
The people are looking." Video Tr. May 20,
to break the
2000, Tape 1, at 14. Stewart told Yousry, "I am making
allowances for them looking in at us and seeing me never speaking
and writing away here while you talk Arabic." Id. at 17. She
then directed Yousry to "talk back to me now, because otherwise
it doesn't make any sense.
So say something in

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English
11
Id. As Yousry explained to Abdel Rahman, "We
are now acting, I talk to her in Arabic, and she responds in
English, and they don't understand what is going on." Video Tr.
May 20, 2000, Tape 2, at 38.

At the end of the visit, Stewart and Yousry took the
Yousry-transcribed responses from Abdel Rahman with them from the

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prison, and later gave them to Sattar. Sattar then passed them
along to Taha and another member of al-Gama'a. Sattar also spoke
to various members of al-Gama'a, informing them that Abdel Rahman
would have "no objection" to a return to violence. Transcript of
Audio Recording of Ahmed Abdel Sattar, Rifa'i Ahmad Taha Musa,
and Salah Hashim, May 29, 2000, at 3.

At about this time, Sattar told members of al-Gama'a
that Stewart would be making a public statement about Abdel
Rahman's views on the cease-fire. Sattar and Stewart first
discussed what Stewart would say to the press. Then, on June 13,
2000, Sattar and Stewart spoke to Esmat Salaheddin, a Reuters
reporter based in Cairo. Stewart told Salaheddin that Abdel
Rahman "is withdrawing his support for the ceasefire that
currently exists." Trial Transcript ("Trial Tr. ") at 5574, 5617,
testimony of Salaheddin. She explained that Abdel Rahman had
made the statement from prison two weeks before.

The next day, other Middle Eastern press outlets
carried the news that Abdel Rahman had withdrawn his support for
the cease-fire. Many noted that for the cease-fire to hold,
Abdel Rahman's support was essential.

On June 20, 2000, Stewart participated in a telephone
conference with Abdel Rahman. She then sent another statement on
Abdel Rahman's behalf via facsimile to Salaheddin, the Reuters
reporter in Cairo. The telecopy said, "Everything said in the
previous statements is correct" and quoted Abdel Rahman as
saying, "I do withdraw my support to the [cease-fire]

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initiative." Statement for Release, Abdel Rahman, June 20, 2000.
Following Stewart's statements on Abdel Rahman's behalf, several
members of al-Gama'a began preparations to engage anew in acts of
violence.

On October 4, 2000, Sattar and Taha completed a fatwa
on Abdel Rahman's behalf, imitating his style, "mandating the
killing of the Israelis everywhere" and "the killing [of] the
Jews wherever they are (UI) and wherever they are found. "
Transcript of Audio Recording of Ahmed Abdel Sattar and Yassir
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 ... )

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sent the fatwa to, among others, Atia, who had in the meantime
become the military leader of al-Gama'a. Upon receiving the
message, Atia began preparing for an attack. But, on October 19,
2000, before Atia could act, the Egyptian authorities raided his
hideout, killing him and killing or arresting other al-Gama'a
members.

On July 13 and 14, 2001, Stewart again paid a visit to
Abdel Rahman at FMC Rochester, having signed a revised
affirmation agreeing to abide by the SAMs and having sent the
affirmation by facsimile to the United States Attorney's Office
for the Southern District of New York on May 7, 2001. Stewart
again, with Yousry's assistance and contrary to provisions of the
SAMs, surreptitiously brought messages to and from Abdel Rahman.

## Procedural History

On April 8, 2002, the defendants were indicted in
connection with these and related acts; a superseding indictment
was filed on November 19, 2003. On February 10, 2005, a jury
found the defendants guilty on all counts in the superseding
indictment. Specifically, all three defendants were convicted of
conspiring to defraud the United States in violation of 18 U.S.C.
§ 371 (Count One) by violating SAMs imposed upon Abdel Rahman,
and various related offenses. Sattar was convicted of conspiring

8 ( .. . continued)
the USA's prisons, and a scholar of the
Azhar.

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with Taha, Abdel Rahman, and others to murder persons in a
foreign country in violation of 18 U.S.C. § 956 (Count Two), and
with soliciting persons to commit crimes of violence -- murder
and conspiracy to commit murder -- in violation of 18 U.S.C. §
373 (Count Three) . Stewart and Yousry were convicted of
providing and concealing material support to the Count-Two
conspiracy, in violation of 18 U.S.C. § 2339A and 18 U.S.C. § 2
(Count Five), and with conspiracy to provide and conceal such
support, in violation of 18 U.S.C. § 371 (Count Four) . Stewart
was also convicted of making false statements in violation of 18
U.S.C. § 1001 (Counts Six and Seven) .

On October 16, 2006, following the denial of the
defendants' motions for a judgment of acquittal and other relief,
the district court sentenced the defendants. See Sentencing
Transcript of Oct. 16, 2006 ("Sent'g Tr. "). Sattar was sentenced
to a 288-month term of incarceration to be followed by a five-
year term of supervised release and a $300 special assessment;
Stewart was sentenced to a 28-month term of incarceration to be
followed by a two-year term of supervised release and a $500
special assessment; and Yousry was sentenced to a 20-month term
of incarceration to be followed by a two-year term of supervised
release and a $300 special assessment. Sattar is currently
serving his sentence; Stewart and Yousry are free on bail pending

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appeal. 9

All three defendants appeal, challenging the validity
of their convictions on a variety of grounds. The government
challenges the reasonableness of the sentences on cross-appeal.

# DISCUSSION

## I. Standard of Review

We review de novo the district court's legal
conclusions, including those interpreting and determining the
constitutionality of a statute. United States v. Awadallah, 349
F.3d 42, 51 (2d Cir. 2003), cert. denied, 543 U.S. 1056 (2005) .
We also review de novo a district court's denial of a motion
pursuant to Federal Rule of Criminal Procedure 29 for a judgment
of acquittal on the ground that the evidence was insufficient to
sustain the conviction. United States v. Florez, 447 F.3d 145,
154 (2d Cir.), cert. denied, 549 U.S. 1040 (2006). Because the
jury verdict will be upheld against a sufficiency challenge "if
we find that 'any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt, ' "
United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000)
(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.

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in Jackson) ), a convicted defendant making such a claim "bears a
very heavy burden, " United States v. Desena, 287 F.3d 170, 177
(2d Cir. 2002) . We are required to evaluate "all of the evidence
in the light most favorable to the government. " United States v.
Aleskerova, 300 F.3d 286, 292 (2d Cir. 2002).

## II. Count One

Each defendant asserts that the evidence admitted at
trial was insufficient to support his or her conviction under 18
U.S.C. § 371 for defrauding the United States and obstructing the
Department of Justice and the Bureau of Prisons in the
administration and enforcement of the SAMs in force with respect
to Abdel Rahman. Stewart also argues that the SAMs do not apply
to lawyers, and that the district court improperly prevented her
from challenging the underlying validity of the SAMs.

## A. Sufficiency of the Evidence

In order to establish a conspiracy-to-defraud offense
under 18 U.S.C. § 371 as charged in Count One of the indictment,
a reasonable jury must have been able to conclude beyond a
reasonable doubt " (1) [that the defendants] entered into an
agreement (2) to obstruct a lawful function of the government [in
this case, the administration and enforcement of the SAMs] (3) by
deceitful or dishonest means and (4) at least one overt act in
furtherance of the conspiracy." United States v. Ballistrea, 101
F.3d 827, 832 (2d Cir. 1996) , cert. denied, 520 U.S. 1150 (1997)
(citation and internal quotation marks omitted). " 'Both the
existence of a conspiracy and a given defendant's participation

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in it with the requisite knowledge and criminal intent may be
established through circumstantial evidence. '" United States v.
Huezo, 546 F.3d 174, 180 (2d Cir. 2008) (quoting United States v.
Stewart, 485 F.3d 666, 671 (2d Cir. 2007) ) (alteration omitted) .

1\. Evidence as to Stewart. Stewart argues that her
defiance of the SAMs was open, not deceitful. One aspect of her
defiance was undoubtedly public -- the conveyance of Abdel
Rahman's statements regarding the cease-fire and related matters
to the Reuters journalist. But we agree with the district court
that " [a] reasonable jury could certainly [have found] that
Stewart gained access to Abdel Rahman [and thereby the
information that she conveyed to the journalist] by deceit and
dishonest means." Sattar V, 395 F. Supp. 2d at 89. "Without
[Stewart's] agreement to abide by the SAMs and the other
representations contained in her affirmations, she knew that she
would not have been allowed to visit Abdel Rahman, " id .; see also
id. at 84-89, and therefore would not later have been able to
defy the regulations openly by publicizing messages on his
behalf.

Stewart insists that she acted with the intent, not to
defraud the government, but to "zealously" represent her
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: "la. One who is zealous, especially
(continued ... )

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disbelieve this, and to "disbelieve that zealous representation
included filing false affirmations, hiding from prison guards the
delivery of messages to Abdel Rahman, and the dissemination of
responses by him that were obtained through dishonesty." Id. at
90. Moreover, even if Stewart acted with an intent to represent
her client zealously, a rational jury could nonetheless have
concluded that Stewart simultaneously acted with an intent to
defraud the government. A genuinely held intent to represent a
client "zealously" is not necessarily inconsistent with criminal
intent.

2\. Evidence as to Yousry. Yousry argues that, as a
translator who was taking direction from others, he did only what
he was told to do and acted in good-faith reliance on the
guidance and conduct of the members of the bar for whom he
worked. Based on the evidence admitted at trial, however, a
rational jury could have found that Yousry knew of and understood
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.

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Yousry had in his possession the December 1999 version
of the SAMs as well as a copy of the underlying regulations.
That version of the SAMs provided that Abdel Rahman's legal team
could pass along to him "only inmate case-related
correspondence, " and set forth a process for screening all non-
legal mail. SAMs of Dec. 10, 1999, 1 7. The SAMs in Yousry's
possession also specifically prohibited Abdel Rahman's
communication with news media "in person, by telephone, by
furnishing a recorded message, through the mails, through his
attorney (s), or otherwise." Id. 1 9. Yousry himself
acknowledged that members of the legal team were not "to disclose
any portion of their conversation with the Sheik to the media. "
Excerpts from Draft of Dissertation of Mohammed Yousry at 29.
Yousry also knew that Clark and Jabara had refused to relay
messages from Abdel Rahman.

From this evidence, a reasonable factfinder could
conclude beyond a reasonable doubt that Yousry knew that his
assistance, by providing translation services, in facilitating
Abdel Rahman's continued contact with members of al-Gama'a
violated the SAMs. Moreover, as with Stewart, Yousry's deceptive
and evasive conduct during the course of his visits to Abdel
Rahman undercuts his claim of good faith.

Yousry argues that the evidence established, at most,
that he intended to violate the SAMs, not that he knew that doing
so might constitute a crime. But even if he misunderstood the

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law in that respect, such a mistake provides no defense to a
charge of criminal misbehavior. See Cheek v. United States, 498
U.S. 192, 199 (1991). The fact that Yousry was aware that his
acts, in knowing violation of the SAMs, would defraud the
government is sufficient to sustain the conviction. The
government need not also prove that he knew that there was a
criminal statute -- 18 U.S.C. § 371 -- that criminalized such
behavior. "The general rule that ignorance of the law or a
mistake of law is no defense to criminal prosecution is deeply
rooted in the American legal system." Cheek, 498 U.S. at 199.
B. Propriety of the SAMs

1\. Stewart's Argument. Stewart contends that the
district court erred by preventing her from challenging the
validity of the SAMs as part of her defense. She sought to argue
that the Attorney General has no authority to have lawyers held
criminally liable for violating the SAMs and that the SAMs are
unconstitutionally vague as applied to her. Under Dennis v.
United States, 384 U.S. 855 (1966), however, Stewart's strategy
of collaterally attacking the validity of the SAMs is futile.

As the Supreme Court recognized in Dennis, there are
"appropriate and inappropriate ways to challenge acts of
government thought to be unconstitutional." Id. at 867. There
is "no reason for [federal courts] to consider the
constitutionality of a statute at the behest of petitioners who
have been indicted for conspiracy by means of falsehood and

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deceit to circumvent the law which they now seek to challenge. "
Id. at 866. Stewart, like the defendants in Dennis, was indicted
for engaging in a "voluntary, deliberate and calculated course of
fraud and deceit." Id. at 867. This is a "prosecution directed
at [Stewart's] fraud [, ] not an action to enforce the [law]
claimed to be unconstitutional." Id. 11

The result may be different where the constitutionality
of a law is "challenged by those who of necessity violate its
provisions and seek relief in the courts, " id. at 865, or where
the governmental action at issue was taken with no "colorable
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.

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

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") .

violent criminality not by acting violently himself, but by
ordering, encouraging, and conspiring with others who would
actually shed the blood. The likelihood that he would continue
to order, direct, or encourage such acts from prison, if he
could, was plain, and his incapacitation reasonably required not
just his physical immobility, but also his virtual silence vis-à-
vis the world at large.

Stewart might have effectively challenged the SAMs by
refusing to sign the affirmations in which she said she would
abide by them. She might then have invoked the jurisdiction of
the courts by bringing suit on Abdel Rahman's or her own behalf
to challenge their validity. She might have argued -- as she
forcefully does here -- that the SAMs interfered with her
capacity to effectively represent Rahman. But she did not.
Instead, she signed the affirmations. Having chosen that path,
she cannot be heard to attack the validity of those measures when
called to account for violating them, especially where, as here,
her fraudulent and deceptive conduct endangered people's lives.

The district court did not err in preventing Stewart
from challenging the validity of the SAMs as part of her defense,
and the jury acted within its province when it found that Stewart
intentionally and fraudulently subverted them.

2\. Sattar's Related Arguments on Appeal. Sattar relies
on Stewart's and Yousry's arguments with respect to Count One.

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For the reasons set forth above addressing those arguments, we
conclude that they are also unpersuasive as applied to him.

III. Counts Two and Three

Only Sattar was charged in Counts Two and Three of the
superseding indictment. He does not challenge the sufficiency of
the evidence supporting his Count Two conviction for conspiring
with Abdel Rahman, Taha, and others to murder persons in a
foreign country, in violation of 18 U.S.C. § 956.13 Instead, he
asserts that the district court should have dismissed this count
on the grounds of vindictive prosecution. Similarly, Sattar does
not challenge his conviction on Count Three for soliciting
persons to engage in crimes of violence -- murder and conspiracy
to commit murder -- in violation of 18 U.S.C. § 373.14 He argues
instead that he was denied a fair trial. These arguments are
addressed below in the context of the defendants' more general
challenges to the probity of the proceedings.

IV. Counts Four and Five

Stewart and Yousry challenge their Count Five
convictions for violating 18 U.S.C. § 2339A and 18 U.S.C. § 2 by
providing and concealing material support for the Count-Two
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.

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convictions for conspiracy to provide and conceal such support,
in violation of 18 U.S.C. § 371. They argue that the evidence
was insufficient to support their conviction on either count, and
contend that their conduct was constitutionally protected in any
event.

## A. History of the Charges

By way of background, the initial indictment charged
all three defendants with violating 18 U.S.C. § 2339B.15 The
defendants argued before the district court that "18 U.S.C.
§ 2339B is unconstitutionally vague . . . with regard to the
statute's prohibition on providing material support or resources
in the form of communications equipment and personnel." Sattar
I, 272 F. Supp. 2d at 356 (internal quotation marks omitted) .
The district court agreed, and therefore dismissed those charges.
Id. at 361.16

The government then filed a superseding indictment
alleging that by essentially the same course of conduct, i.e.,
coordinating the surreptitious passage of al-Gama'a messages to
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.

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19

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

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

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

currency or other financial securities,
financial services, lodging, training,
safehouses, false documentation or
identification, communications equipment,
facilities, weapons, lethal substances,
explosives, personnel, transportation, and
other physical assets, except medicine or
religious materials.

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

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provision of material support without regard to what the support
is for. Section 2339A requires instead that the defendant
provide support or resources with the knowledge or intent that
such resources be used to commit specific violent crimes. 18

The government charged that the defendants provided
"material support or resources" in the form of "personnel" --
namely, Abdel Rahman -- to the Count-Two conspiracy, knowing or
intending that Abdel Rahman, as an active co-conspirator, would
help commit crimes. See Sattar III, 314 F. Supp. 2d at 296. The
government further asserted that Stewart and Yousry "conceal [ed]
and disguise [d] the nature, location, and source" of their
material support by means of the defendants' covert conduct
disguising Abdel Rahman's participation as a co-conspirator. See
id. The government had initially argued that Stewart and Yousry
could be convicted for providing themselves as "personnel" to a
foreign terrorist organization and by providing communications
equipment to the conspiracy. After the dismissal of the section
2339B charges and following the filing of the superseding
indictment, however, the government abandoned those contentions.
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.

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

## B. Elements of Section 2339A

1\. Proof of the Underlying Conspiracy to Kill Persons
Abroad.19 There was sufficient evidence of the existence of the
predicate crime -- the Count-Two conspiracy to kill or kidnap --
for which Sattar was convicted. Indeed Sattar, the only
defendant charged with and convicted of participating in the
Count-Two conspiracy, does not challenge the sufficiency of the
evidence as to this count.

The government offered evidence that Sattar and Taha
composed a fatwa in Abdel Rahman's name calling for "the killing
[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.

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found." Audio Tr. Oct. 4, at 15. It also offered proof that
this fatwa was communicated to Atia, an al-Gama'a military
leader. Although the evidence may not have established any
particular plan of action to execute the fatwa, a reasonable jury
could have found beyond a reasonable doubt from the fatwa's
exhortations and Atia's readiness to act on it that there was a
concrete, illegal objective to murder persons abroad.

A review of the transcripts of various intercepted
telephone conversations introduced into evidence, particularly
the September 18, 2000, conversation involving Sattar, Taha, and
another party, bolsters this conclusion. The discussion goes
well beyond the abstract and contemplates the coordination with
Atia of violent actions, presumably along the lines of the Luxor
massacre. In light of such evidence, a rational jury could have
found beyond a reasonable doubt that the conspiracy as charged in
Count Two existed.

### 2. Proof of Material Support to the Conspiracy.

Stewart and Yousry also assert that they did not provide material
support in the form of "personnel" to the Count-Two conspiracy.
A reasonable jury could have concluded otherwise. There was
evidence introduced at trial sufficient to support a reasonable
juror's inference that Stewart and Yousry helped Abdel Rahman
participate covertly in the conspiracy to engage in violence
abroad by communicating to members of al-Gama'a and others his
withdrawal of support for the cease-fire. Abdel Rahman's

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instrumental participation -- indeed, his leadership -- would, as
the district court observed, have been unavailable to the Count-
Two conspiracy "without the active participation of Stewart and
Yousry." Sattar V, 395 F. Supp. 2d at 95.

The defendants argue that the government established
only that they provided the underlying conspiracy with Abdel
Rahman's "pure speech" and therefore did not provide "personnel"
within any constitutional interpretation of section 2339A. The
government does not deny that section 2339A may not be used to
prosecute mere advocacy or other protected speech, but contends
that the defendants were prosecuted for criminal actions that did
not amount to protected speech.

Resolution of this dispute does not turn on whether the
prosecution introduced evidence of "pure speech. " "Numerous
crimes under the federal criminal code are, or can be, committed
by speech alone, " and certain crimes "are characteristically
committed through speech." Rahman, 189 F.3d at 117. The issue
is, instead, whether Abdel Rahman's statements were protected
speech. We conclude that the statements were not protected such
as to cast doubt on the convictions.

Words that are "the very vehicle of [a] crime" are not
protected "merely because, in part, [the crimes] may have
involved the use of language." United States v. Rowlee, 899 F.2d
1275, 1278 (2d Cir.), cert. denied, 498 U.S. 828 (1990). As we
recognized when affirming Abdel Rahman's sentence, "freedom of

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speech and of religion do not extend so far as to bar prosecution
of one who uses a public speech or a religious ministry to commit
crimes." Abdel Rahman, 189 F.3d at 116-17. " [I]f the evidence
shows that the speeches crossed the line into criminal

solicitation, procurement of criminal activity, or conspiracy to
violate the laws, the prosecution is permissible." Id. at 117.
Words "that instruct, solicit, or persuade others to commit
crimes of violence . . . violate the law and may be properly
prosecuted regardless of whether they are uttered in private, or
in a public speech, or in administering the duties of a religious
ministry. " Id.

The dissemination of some of the speech introduced at
trial might be viewed as nothing more than the expression of
views on the broad political situation in Egypt. For example, in
reaffirming that he was withdrawing his support for the cease-
fire, Abdel Rahman said that he had "expressed [his] opinion and
left the matters to [his] brothers to examine it and study it. "
Statement for Release, Abdel Rahman, June 20, 2000.

But a reasonable jury could have found, in light of
Abdel Rahman's role as "spiritual" leader of al-Gama'a, that his
messages were ultimately intended to sway al-Gama'a members to
end the cease-fire, and by implication to commit criminal acts of
violence. Abdel Rahman's statements were therefore not an
expression of opinion, but a call to arms.

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The evidence establishes, moreover, more than a one-way
broadcast of Abdel Rahman's views. Abdel Rahman's comments were
made in direct response to solicitations of his views from other
al-Gama'a members who were seeking to effect an end to the cease-
fire and to resume violence. In light of the information
available to Abdel Rahman at the time, a reasonable jury could
have read his statements as tailored to and necessary for
al-Gama'a's operations and increased use of violence. Viewed
through this lens, Abdel Rahman's statements were not materially
different in substance from a crime boss making decisions about
his criminal enterprise from prison and ordering a "hit."

3\. Proof Regarding Knowing or Intentional Provision of
Material Support. Stewart and Yousry argue that the prosecution
did not prove the requisite mental state to sustain their
convictions. They contend that they were not aware of the
existence of the conspiracy charged in Count Two and therefore
could not have intended to aid it.

These arguments are unavailing. From the evidence at
trial, a reasonable factfinder could have concluded that Stewart
and Yousry knew (1) that an active group of people within
al-Gama'a including, most notably, Taha, sought to commit violent
crimes but were hindered by the cease-fire and by those members
of al-Gama'a who sought to adhere to it; (2) that the support of
Abdel Rahman -- a key leader of the group -- was critical to the
continued maintenance of the cease-fire; and (3) that, in light

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of the letters and messages from Taha and Sattar that Yousry read
to Abdel Rahman in prison, Abdel Rahman's particular opinion
regarding the cease-fire -- and not the view of any other person
-- would be dispositive on the question of whether al-Gama'a
members would continue to abide by the cease-fire. A reasonable
factfinder could thus have concluded that Yousry and Stewart
actively and intentionally facilitated communications between
Abdel Rahman and al-Gama'a, in part by engaging in various ruses
during the course of their visits to Abdel Rahman, and thereby
effectively delivered Abdel Rahman's order to commit violence.
Stewart also did so by reaffirming to the press Abdel Rahman's
stated withdrawal of support for the cease-fire, thereby
dispelling any notion that the message came not from Abdel Rahman
himself, but was instead fabricated by members of the pro-
violence faction of al-Gama'a.

C. Other Challenges with Respect to 18 U.S.C. § 2339A

1\. Vaqueness. Section 2339A criminalizes the provision
of material support or resources "knowing or intending" that they
are to be used to assist in certain enumerated crimes of
terrorism. 18 U.S.C. § 2339A (a) (full text set forth on page
[38], supra) . Stewart and Yousry assert that insofar as the
statute does not require "conscious, knowing intent" or
"knowledge and intent, " the statute is unconstitutionally vague
as applied to them. They argue that the district court should
have dismissed the section 2339A charges for substantially the

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same reasons that it dismissed the section 2339B charges that
were contained in the initial indictment. The government urges
to the contrary that the text of section 2339A, which requires
"knowing or intending, " 18 U.S.C. § 2339A (a) (emphasis added), is
sufficiently precise.

In analyzing the defendants' arguments in this regard,
we must focus on two major differences between the initial and
superseding indictment.

First, the statutes upon which they were based differ.
Unlike section 2339A, section 2339B penalizes the knowing
provision of material support alone. Unlike section 2339A,
section 2339B does not require for conviction proof that the
defendant has provided support or resources with the knowledge or
intent that such resources be used to commit specific violent
crimes. 20

Second, the factual bases for the charges differ. In
the initial indictment, the government alleged that the
defendants violated section 2339B by the "provision" of
"communications equipment" to the conspiracy, Sattar I, 272 F.
Supp. 2d at 357, and the "provision" of themselves as "personnel"
to the conspiracy, id. at 358. In the superseding indictment,
the government charged instead that the defendants acted with the
"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.

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than proceeding on the theory that the defendants provided
themselves as "personnel" to the conspiracy, the superseding
indictment alleges that the defendants provided Abdel Rahman as
the "personnel. "

As we have explained, the district court dismissed the
section 2339B charges on the ground that they were
unconstitutional as applied to the defendants. The basis for
dismissal of the "communications equipment" charges was that the
statute, as read to apply to the facts of this case, could
"criminaliz [e] the mere use of phones and other means of
communication [with] neither notice nor standards for [the
statute's] application." Id. And the basis for the dismissal of
the "personnel" charges, as framed in the initial indictment, was
that such a charge could criminalize the actions of " ' [s] omeone
who advocates the cause of the [Foreign Terrorist

Organization]. '" Id. at 359 (quoting Humanitarian Law Project v.
Reno, 205 F.3d 1130, 1137 (9th Cir. 2000), cert. denied, 532 U.S.
904 (2001) ) (brackets omitted) . Without more, the district court
concluded, such conduct cannot be punished without violating the
First Amendment. See id.

The initial charges raised the possibility, moreover,
that under the government's reading of the statute, "a lawyer,
acting as an agent of her client, an alleged leader of an FTO,
could [be] subject to criminal prosecution as a 'quasi -
employee. '" Id. As we shall see, the charges in the superseding
indictment do not pose this risk.

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A statute is unconstitutionally vague as applied "if it
fails to provide people of ordinary intelligence a reasonable
opportunity to understand what conduct it prohibits" or "if it
authorizes or even encourages arbitrary and discriminatory
enforcement." Hill v. Colorado, 530 U.S. 703, 732 (2000) ; accord
United States v. Rybicki, 354 F.3d 124, 132 (2d Cir. 2003) (en
banc), cert. denied, 543 U.S. 809 (2004). As a general matter,
scienter requirements may "ameliorate []" concerns of improper
notice. See Hill, 530 U.S. at 732.

We are satisfied that section 2339A's knowledge-or-
intent formulation saves the statute from being
unconstitutionally vague as applied here. Unlike the application
of section 2339B proposed in the initial indictment, the
superseding indictment required the jury to find that the
defendants knew or intended the criminal uses to which the
conspiracy would put the material support they provided, thereby
eliminating concerns about inadequate notice. In other words, if
Stewart and Yousry knew that their actions provided material
support to a conspiracy to end the cease-fire and thereby unloose
deadly acts of terrorism by al-Gama'a and others, then they were
on notice that what they were doing was prohibited by a statute
that criminalizes the provision of material support "knowing or
intending that [such support is] to be used in preparation for,
or in carrying out," criminal actions. 18 U.S.C. § 2339A.

Stewart and Yousry argue nonetheless that several
statutory terms, such as "personnel, " are unconstitutionally

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vague as applied to them. They note that "personnel, " undefined
at the relevant time, applies equally to sections 2339A and
2339B, compare id. § 2339A (b) (1) (2000) with id. § 2339B (g) (4)
(2000) .21 They point out that the district court held this term
to be unconstitutionally vague in Sattar I. See 272 F. Supp. 2d
at 360.

We agree, however, with the district court's conclusion
that " [t]he meaning of 'personnel' is clear in the context of
§ 2339A when applied to personnel who are to be used in
preparation for, or in carrying out, specific crimes." Sattar
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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indictment, the prohibition against providing "personnel" to the
conspiracy to a circumstance in which the defendants provided

themselves, the government created a situation in which the
defendants could be punished for, in effect, providing themselves
to speak out in support of the program or principles of a foreign
terrorist organization, an activity protected by the First
Amendment. See Sattar I, 272 F. Supp. 2d at 359. The more
limited charge that they knowingly or intentionally provided
Abdel Rahman (as "personnel"), whose voice of command or words of
approbation were a means by which al-Gama'a members could prepare
for, or carry out, terrorist acts in Egypt, does not carry the
same risk with its corresponding constitutional implications.

In addition, the heightened scienter requirement in
section 2339A constrains prosecutorial discretion, and
ameliorates concerns of arbitrary and discriminatory enforcement.
Similar scienter requirements have saved other statutes from
void-for-vagueness challenges. See, e.g., Hill, 530 U.S. at 732;
see also Colautti v. Franklin, 439 U.S. 379, 395 & n.13 (1979)
(citing cases) ; United States v. Curcio, 712 F.2d 1532, 1543 (2d
Cir. 1983) .

2\. Nature of the Offense. Stewart and Yousry also
contend that Count Four, alleging a conspiracy to violate section
2339A, acts impermissibly as a charge of a "multi-level inchoate
offense, " a "logical absurdity" that "violate [s] due process."
Stewart Br. 161-65. The gist of their argument is that the
charge effectively criminalizes a "conspiracy to conspire, "

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thereby violating due process by extending criminal liability to
a degree too remote from any substantive criminal offense to pass
constitutional muster. Id. at 165-69. We need not consider this
argument; 22 Count Five charges the knowing provision of aid -- a
substantive, not inchoate, offense -- and Count Four, pursuing a
conspiracy to commit that substantive offense, functions as a
traditional conspiracy charge.

As what seems to us to be a variation on the same
theme, Stewart and Yousry assert that the district court erred by
"impermissibly dilut [ing] " the proof required for conviction of
the Count-Two conspiracy in the context of the material support
convictions under section 2339A. Stewart Br. 158. But the
government need not have established beyond a reasonable doubt
that Stewart or Yousry engaged in a conspiracy to kidnap or
commit murder abroad; neither was charged with doing either.

Instead, both were charged with and convicted of violating
section 2339A, and, as discussed, the evidence is sufficient to
sustain the conviction on those charges. Stewart and Yousry do
not, presumably because they cannot, suggest that Congress did
not have the power to criminalize the relevant underlying
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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V. Counts Six and Seven

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

whoever, in any matter within the
jurisdiction of the executive, legislative,
or judicial branch of the Government of the
United States, knowingly and willfully --

(1) falsifies, conceals, or covers up by
any trick, scheme, or device a material fact;

(2) makes any materially false,
fictitious, or fraudulent statement or
representation; or

(3) makes or uses any false writing or
document knowing the same to contain any
materially false, fictitious, or fraudulent
statement or entry

18 U.S.C. § 1001 (a) . Stewart argues that, at worst, she broke a
promise, and that the statute criminalizes false statements, not
false promises.

We conclude otherwise. On May 16, 2000, Stewart signed
an affirmation stating that she would ("shall") abide by the
SAMs. On May 26, 2000, Stewart submitted the affirmation to the
United States Attorney's Office for the Southern District of New
York. On May 7, 2001, Stewart signed a revised affirmation to
the same effect and telecopied it to the same office. Before,
after, and between executing these affirmations, she helped
smuggle messages to and from Abdel Rahman in violation of the
SAMs .

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

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

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

I . . . specifically understand that the
meetings shall not be for the purpose of
presenting statements to the defense team for
further dissemination to third parties,
including the media. I will only allow the
meetings to be used for legal discussion
between Abdel Rahman and me.

Stewart May 2001 Aff. (Gov't Ex. 12.)

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

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"a promise may amount to a 'false, fictitious or fraudulent '
statement if it is made without any present intention of
performance and under circumstances such that it plainly, albeit
implicitly, represents the present existence of an intent to
perform") .

Stewart seeks support for her argument from Williams v.
United States, 458 U.S. 279 (1982) . There, the Supreme Court
reversed a conviction of the defendant under 18 U.S.C. § 1014 for
his making of a "false statement" -- a check drawn on an account
containing insufficient funds -- for the purpose of influencing
the actions of a federally insured institution. But central to
the Williams Court's analysis was the proposition that a check,
even a bad check, "is not a factual assertion at all." Id. at
284. A check "d [oes] not, in terms, make any representation as
to the state of [the drawer's] bank balance" but "serve [s] only
to direct the drawee banks to pay the face amounts to the bearer,
while committing [the drawer] to make good the obligations if the
banks dishonor [] the drafts." Id. at 284-85.

Williams does not apply to the conduct at issue here.
A reasonable jury could have concluded that Stewart's
affirmations that she would abide by the SAMs amounted to factual
assertions regarding her then-present intent to abide by the
SAMs. Based on her repeated affirmations, and her repeated
violations of those affirmations, moreover, a reasonable jury
could have concluded that at the time Stewart executed and
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by them -- in other words, that her representations were
knowingly false when made. On this basis, a reasonable jury
could have properly concluded that Stewart violated section 1001
as charged in Counts Six and Seven.

# VI. General Challenges to the Validity of the Convictions

In addition to their challenges to specific counts in
the indictment, Stewart and Sattar make general assertions of
error regarding the government's conduct during the course of the
prosecution. Stewart argues that she was selectively prosecuted
on account of her gender and political beliefs, and both Stewart
and Sattar assert that the government's decision to file a
superseding indictment following their successful efforts to
14 dismiss several counts of the initial indictment constitutes
vindictive prosecution.

The defendants also raise various challenges to the
district court's case administration. First, they allege a
variety of pretrial errors: in the denial of their motions to
sever their trial from Sattar's; in the empaneling of an
anonymous jury; in the denial of Stewart's motion to suppress
certain evidence obtained pursuant to the Foreign Intelligence
Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783, 50
U.S.C. §§ 1801 et seq. ("FISA") ; and in the denial of Stewart's
motion for disclosure of whether she, her co-defendants, or
others were subject to surveillance by the National Security
Agency. The defendants also argue that the district court made

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various evidentiary errors. Finally, the defendants argue that
the district court erred in addressing post-conviction claims of
juror misconduct.

## A. Selective Prosecution

Stewart argues that she was selectively prosecuted on
account of her gender and political beliefs in violation of the
Equal Protection Clause of the Fourteenth Amendment. This
argument requires Stewart to establish that she was "treated
differently from other similarly situated individuals" and that
"such differential treatment was based on impermissible
considerations such as race, religion, intent to inhibit or
punish the exercise of constitutional rights, or malicious or bad
faith intent to injure [her] . " Harlen Assocs. v. Inc. Vill. of
Mineola, 273 F.3d 494, 499 (2d Cir. 2001) (internal quotation
marks omitted) ; accord United States v. Fares, 978 F.2d 52, 59
(2d Cir. 1992) ; United States v. Moon, 718 F.2d 1210, 1229 (2d
Cir. 1983), cert. denied, 466 U.S. 971 (1984).

Stewart compares her treatment with that of Abdel
Rahman's former lawyers Ramsey Clark and Abdeen Jabara, who, even
though they allegedly violated the same SAMs as she did, were not
prosecuted for doing so. Clark's and Jabara's alleged
misconduct, however, was different from Stewart's adjudicated
misconduct in at least one crucial respect: both Clark and Jabara
refused to publicize Abdel Rahman's withdrawal of support for the
al-Gama'a cease-fire, something Stewart did at least twice. Like
Stewart, Clark spoke to the media on Abdel Rahman's behalf. But

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unlike Stewart, the message Clark disseminated in apparent
violation of the SAMs -- that Abdel Rahman did not support the
formation of a political party in Egypt -- did not have the same
potential for inciting violence. For that reason and those set
forth by the district court in its decisions addressing the
matter, see Sattar V, 395 F. Supp. 2d at 103 (denying selective
prosecution claim) , cf. Sattar III, 314 F. Supp. 2d at 311-14
(denying vindictive prosecution claim), and Order, Sept. 1, 2004
(denying selective prosecution claim), Stewart's arguments in
this regard are without merit. 23

## B. Vindictive Prosecution

Sattar argues that the district court erred in denying
his motion to dismiss the Count-Two conspiracy charge in the
superseding indictment because the institution of the charge was
driven by prosecutorial vindictiveness. This argument is also
without merit.

The government filed the original five-count indictment
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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were charged with providing, attempting to provide, and
conspiring to provide material support and resources to an FTO in
violation of 18 U.S.C. § 2339B. Sattar moved to dismiss these
charges on the ground that section 2339B was unconstitutionally
vague as applied to the allegations in the indictment. By
opinion and order dated July 22, 2003, the district court agreed
with Sattar. Sattar I, 272 F. Supp. 2d at 358-61. Following
that decision, the government filed a superseding indictment
adding a new count charging Sattar with conspiring to murder
persons in a foreign country in violation of 18 U.S.C. § 956.

Sattar argues that the government's decision to file
the superseding indictment and add the charge of violating
section 956 "was a retaliatory act . . . motivated by the
embarrassment [the government] suffered as a result of the
dismissal" of two central counts in the original indictment.
Sattar Br. 17. He asserts that an inference of vindictive
prosecution is supportable in two ways: First, the addition of
Count Two -- which carries a potential sentence of life
imprisonment, a longer sentence than that authorized by the
dismissed charge pursuant to section 2339B -- "up [ped] the ante"
for the consequences of conviction. Sattar III, 314 F. Supp. 2d
at 311. Second, the government could have brought the section
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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on information known to the government prior to the filing of the
initial indictment, but the government declined to do so.

" [T] he decision as to whether to prosecute generally
rests within the broad discretion of the prosecutor, and a

prosecutor's pretrial charging decision is presumed legitimate. "

United States v. Sanders, 211 F.3d 711, 716 (2d Cir.), cert.
denied, 531 U.S. 1015 (2000) (citations and internal quotation
marks omitted) . Nonetheless, "a prosecution brought with
vindictive motive, penalizing those who choose to exercise
constitutional rights, would be patently unconstitutional." Id.
(internal quotation marks omitted) . We will dismiss an
indictment if actual vindictiveness has been demonstrated, or if,
under the circumstances, "there is a presumption of
vindictiveness that has not been rebutted by objective evidence
justifying the prosecutor's action." Id. (internal quotation
marks omitted) .

We review a district court's factual findings on
prosecutorial vindictiveness for clear error, and its legal
conclusions de novo. United States v. Johnson, 171 F.3d 139, 140
(2d Cir. 1999) (per curiam) . We review a district court's
decision denying discovery on claims of prosecutorial
vindictiveness for abuse of discretion. Sanders, 211 F.3d at
717.

"Th [e] need to avoid the appearance of vindictiveness
has taken the form of a presumption of prosecutorial
vindictiveness
applied when (but only when) the

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circumstances of a case pose a "realistic likelihood" of such
vindictiveness. United States v. King, 126 F.3d 394, 397 (2d
Cir. 1997) (citations and internal quotation marks omitted) . The
district court found no reason to presume that the actions at
issue, which arose in a pretrial setting, were vindictive. See
Sattar III, 314 F. Supp. 2d at 311-12.

"The circumstances must present a realistic likelihood
of vindictiveness that would be applicable in all cases, and any
such presumption may be overcome by objective evidence justifying
the prosecutor's action." Sanders, 211 F.3d at 717 (citations
and internal quotation marks omitted) . " [T]his court has
consistently adhered to the principle that the presumption of
prosecutorial vindictiveness does not exist in a pretrial
setting." Paradise v. CCI Warden, 136 F.3d 331, 335 (2d Cir.),
cert. denied, 525 U.S. 836 (1998) (internal quotation marks
omitted) ; see also Sanders, 211 F.3d at 717 (same). Sattar
provides no reason for us to deviate from this general rule here,
and no basis upon which we can conclude that the district court's
findings in this respect were clearly erroneous.

Sattar's claim of actual, as opposed to presumptive,
vindictiveness is also without merit. A finding of actual
vindictiveness requires a showing that a "prosecutor's charging
decision [is] a 'direct and unjustifiable penalty, ' that resulted
'solely from the defendant's exercise of a protected legal
right. '" Sanders, 211 F.3d at 716-17 (internal citation
omitted). The evidence Sattar offers in this regard is that the

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government possessed the same information when preparing the
original and superseding indictments, that the maximum punishment
Sattar faced if convicted under the superseding indictment was
greater than that he faced if convicted under the original
indictment, and that the superseding indictment was the result of
the district court's dismissal of the section 2339B material
support charges in the original indictment. We have no warrant
to conclude that the district court clearly erred in finding that
the charging decision was not vindictive, or that the government
was attempting to do anything more than hold Sattar criminally
responsible for engaging in the underlying acts that form the
basis of the indictment. See Paradise, 136 F.3d at 336. Put
another way, it does not follow from the facts Sattar recites
that the resulting charge was necessarily brought vindictively;
for this reason the district court did not err in concluding
otherwise.

# C. Trial Administration

## 1. Alleged Pre-Trial Errors

### a. Severance

Stewart and Yousry assert that the district court
abused its discretion by denying their motions to sever their
trial from the trial of Sattar because Sattar was charged with,
and convicted of, conspiracy to murder persons in a foreign
country -- allegations different from and more serious than those
with which Stewart and Yousry were charged. To succeed on this
argument, Stewart and Yousry must show that the district court

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abused its discretion in this regard and that the resulting
prejudice rose to the level of "a miscarriage of justice." See
United States v. Yousef, 327 F.3d 56, 150 (2d Cir. 2003) .

Stewart and Yousry complain primarily that as a result of the
district court's denial of their motion for severance, evidence
irrelevant to their actions and unfairly prejudicial to their
case permeated the trial. They further contend that the volume
of limiting instructions given to the jury rendered them
effectively useless in attempting to curb any prejudicial effect.

But the district court did not abuse its discretion in
this respect. Count Two charged Sattar with conspiring to murder
persons in a foreign country. Count Five charged Stewart and
Yousry with providing and concealing material support to that
conspiracy, and Count Four charged them with conspiring to
provide and conceal that support. Most of the evidence against
Sattar that Stewart and Yousry assert to have been unduly
prejudicial to them -- evidence submitted to establish the

existence of the Count-Two conspiracy charge against Sattar --
would have been admissible against Stewart and Yousry even had
the trial been severed. See Sattar I, 272 F. Supp. 2d at 380-81.
This is so because the Count-Two conspiracy was an element of the
crimes charged against Stewart and Yousry in Counts Four and
Five, and the government would have been entitled, and expected,
to elicit relevant evidence regarding its existence. " [T]he fact
that testimony against a codefendant may be harmful is not a
ground for severance if that testimony would also be admissible

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against the moving defendant tried separately." United States v.
Rosa, 11 F.3d 315, 341 (2d Cir. 1993), cert. denied, 511 U.S.
1042 (1994).

To the extent that evidence introduced at trial was not
admissible against a particular defendant, the district court
gave detailed -- if necessarily voluminous -- curative
instructions to the jury. Neither Stewart nor Yousry proffer
instructions that should have been given, but were not. Nor do
they identify improper curative instructions that were given.
This is not a case where "the risk that the jury [would] not, or
[could] not, follow instructions [was] so great, and the
consequences of failure so vital to the defendant, that the
practical and human limitations of the jury system [could not] be
ignored." Bruton v. United States, 391 U.S. 123, 135 (1968) .
Despite the length of the instructions, we presume, as did the
district court, see Sattar V, 395 F. Supp. 2d. at 104, that the
jurors followed them, see, e.g., Richardson v. Marsh, 481 U.S.
200, 206 (1987) (noting that it is an "almost invariable
assumption of the law that jurors follow their instructions") ;
United States v. Salameh, 152 F.3d 88, 116 (2d Cir. 1998), cert.

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discretion in this regard.

denied, 525 U.S. 1112 (1999) ("Juries are presumed to follow
their instructions." (internal quotation marks and brackets
omitted) ) . Neither Stewart nor Yousry provide us with a
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### b. Empaneling an Anonymous Jury

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

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

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

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"the court has taken reasonable precautions to minimize any
prejudicial effects on the defendant and to ensure protection of
his fundamental rights, the decision to empanel an anonymous jury
is reviewed only for abuse of discretion." United States v.
Thai, 29 F.3d 785, 801 (2d Cir.), cert. denied, 513 U.S. 977
(1994) .

In light of (a) the charges against the defendants,
which included a terrorist conspiracy to murder, and Stewart's
and Yousry's alleged provision of material support to that
conspiracy; (b) the reasonable likelihood that the pervasive
issue of terrorism would raise in the jurors' minds a fear for
12 their individual safety; (c) the fact that the charges against
Stewart and Yousry were in significant part about their alleged
corruption of the judicial process; (d) the widespread pretrial
publicity about the case; and (e) the extensiveness of the voir
dire administered to the jury by the court, we conclude that the
district court did not abuse its discretion.

### c. Pre-Trial Suppression of Evidence

i. Suppression of Evidence Obtained Pursuant to
FISA. The defendants argue that evidence obtained from
electronic surveillance pursuant to FISA should have been
suppressed because such surveillance was improperly instituted
for the purpose of a criminal investigation, rather than for the
gathering of intelligence, and because FISA was unconstitutional
as applied in this case.

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

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

Id. at *2, 2003 U.S. Dist. LEXIS 16164, at *6. A month later, by
letter dated May 8, 2002, the government also informed the
defendants that "information obtained or derived pursuant to the
authority of the FISA was used, and will continue to be used, in
connection with the prosecution of [this] case." Id .; see 50
U.S.C. § 1806 (c) (providing that where the government intends to
disclose information obtained from FISA surveillance, the

government "shall, prior to the trial
notify the aggrieved

person and the court
that the Government intends to so
disclose or so use such information") .

As part of its pretrial obligations under FISA, the
government

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

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

Sattar II, 2003 WL 22137012, at *2, 2003 U.S. Dist. LEXIS 16164,
at *7.

In accordance with the procedure set forth in FISA, see
50 U.S.C. § 1806 (e) , Sattar and Stewart moved to suppress the
evidence arising out of the FISA surveillance, and for access to
classified information regarding that surveillance. The
government argues on appeal, as it did before the district court,
that the FISA surveillance at issue was lawfully authorized and
conducted. The government moved the district court to order that
none of the classified documents or classified information
contained therein would need to be disclosed to the defendants.

Pursuant to 50 U.S.C. § 1806 (f) , the government requested that

the court conduct an in camera and ex parte review of the
materials and proffered an affidavit of then-Attorney General
John Ashcroft stating, in relevant part, that "it would harm the

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national security of the United States to disclose or have an
adversary hearing with respect to materials submitted to the
United States Foreign Intelligence Surveillance Court . . . in
connection with this matter." Sattar II, 2003 WL 22137012, at
*5, 2003 U.S. Dist. LEXIS 16164, at *18.

.
After reviewing the classified materials, the district
court concluded that "all of the requirements of FISA were
satisfied" and "each of the FISA surveillances was authorized by
a FISA Court order that complied with the statutory requirements
for such orders and was supported by the statements and
certifications required by the statute." Id. at *6, 2003 U.S.
Dist. LEXIS 16164, at *21. The district court also concluded
that this was "not a case where disclosure [of the classified
FISA materials] was necessary or where a review of all of the
materials suggested that due process required disclosure to the
defendants." Id. at *6, 2003 U.S. Dist. LEXIS 16164, at *22.
On appeal, Stewart argues that the materials generated
pursuant to the FISA surveillance should have been suppressed
because the surveillance was instituted for the purposes of a
criminal investigation, not for the purpose of intelligence
gathering. In addition, Stewart contends that the FISA review
process lacks meaningful judicial review, and that due process
required that her counsel have access to the FISA applications
and warrants.

Stewart's attacks on the constitutionality of the FISA
statute are foreclosed by this Court's decision in United States

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v. Duggan, 743 F.2d 59 (2d Cir. 1984), which, despite its age,
remains binding precedent in this Circuit. There, we concluded
that "the procedures fashioned in FISA [are] a constitutionally
adequate balancing of the individual's Fourth Amendment rights
against the nation's need to obtain foreign intelligence
information." Id. at 73.

Congress created the FISA system in an attempt to
accommodate "the legitimate need of Government for intelligence
information and the protected rights of our citizens." United
States v. U.S. District Court, 407 U.S. 297, 322-23 (1972). As
we have explained, "Congress passed FISA to settle what it
believed to be the unresolved question of the applicability of
the Fourth Amendment warrant requirement to electronic
surveillance for foreign intelligence purposes, and to remove any
doubt as to the lawfulness of such surveillance." Duggan, 743
F.2d at 73 (internal quotation marks omitted) . FISA's primary
focus is surveillance for the purpose of gathering foreign
intelligence information, which is defined to include
"information that relates to, and if concerning a United States
person is necessary to, the ability of the United States to
protect against [inter alia] international terrorism." 50 U.S.C.
§ 1801 (e) (1).

FISA established a court (the "FISA Court") comprised
of designated district court judges ( "FISA Judges") . The FISA
Court has jurisdiction over applications for electronic
surveillance relating to the gathering of potential foreign

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intelligence information under the procedures set forth in FISA.
See id. § 1803. FISA generally permits a federal officer, when
authorized by the President of the United States acting through
the Attorney General, to obtain from any FISA Judge an order
"approving electronic surveillance of a foreign power or an agent
of a foreign power for the purpose of obtaining foreign
intelligence information." Id. § 1802 (b) . " [A] group engaged in
international terrorism or activities in preparation therefor, "
is a "foreign power, " id. § 1801 (a) (4), and an "agent of a
foreign power" includes any person who "knowingly engages in
sabotage or international terrorism, or activities that are in
preparation therefor, for or on behalf of a foreign power" or
"knowingly aids or abets any person in [such] conduct, " id.
§ 1801 (b) (2) (C) & (E) .

In order to secure an order authorizing surveillance
from a FISA Judge, the officer's application must meet the
statutory requirements set forth in 50 U.S.C. § 1804. For
example, the application must set forth the identity or
description of the target of the surveillance, id. § 1804 (a) (2) ,
and a statement of facts and circumstances relied upon to justify
the officer's belief that the target is a foreign power or agent
of a foreign power and that each facility or location to be

subjected to surveillance is being used or is about to be used by
the target, id. § 1804 (a) (3). Prior to October 26, 2001, such a
federal officer was required to certify to the FISA judge that
"the purpose" of the FISA surveillance was the interception of

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foreign intelligence information. See id. § 1804 (a) (7) (B)
(2000) . In Duggan, we interpreted this provision to mean that
the interception of foreign intelligence information must be the
"primary objective" of the surveillance. Duggan, 743 F.2d at 77.
The statute was changed in the wake of the events of September
11, 2001, however, to require only that "a significant purpose"
of the surveillance be the interception of such information. See
50 U.S.C. § 1804 (a) (7) (B) (2003) ; see also 50 U.S.C.

§ 1804 (a) (6) (B) (2008) (redesignated from (a) (7)).

Only after a FISA Judge has been satisfied that the
application meets FISA's requirements will he or she authorize
the surveillance. To enter an order approving surveillance, the
FISA Judge must find that the application was properly filed and
properly authorized by the Attorney General; that associated
procedures designed to minimize the acquisition and retention of
non-publically available information concerning "United States
persons" satisfy FISA's requirements, see id. § 1801 (h) ; that the
facts set forth in the application provide probable cause to
believe that the target is a foreign power or agent of such a
power; and that the locations to be subject to surveillance are
being used, or are about to be used, by the target, id.

§ 1805 (a) .

When the application is complete and properly certified
by an executive branch official, however,

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

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the FISA Judge (1) to find probable cause to
believe that the target of the requested
surveillance is an agent of a foreign power;
(2) to find that the application is complete
and in proper form; and (3) when the target
is a United States person, to find that the
certifications are not "clearly erroneous. "

Duggan, 743 F.2d at 77. Stewart's argument that FISA does not
ensure adequate judicial view is therefore foreclosed by Duggan.
See id. at 77 & n.6.

Although the purpose of the surveillance must be to
obtain foreign intelligence information, "otherwise valid FISA
surveillance is not tainted simply because the government can
anticipate that the fruits of such surveillance may later be
used . . . as evidence in a criminal trial." Id. at 78. To the
contrary, the statute specifically contemplates the introduction
of FISA surveillance evidence in criminal prosecutions. See 50
U.S.C. § 1806 (b) . As both Congress and this Court have
recognized, "in many cases the concerns of the government with
respect to foreign intelligence will overlap those with respect
to law enforcement." Duggan, 743 F.2d at 78.

When such FISA information is introduced in the course
of a criminal prosecution, and upon review of a suppression
motion, the trial court has the opportunity to review the FISA
Court's order, issued pursuant to 50 U.S.C. § 1805, in light of
the underlying applications for surveillance, filed pursuant to
50 U.S.C. § 1804, in order "to determine whether the surveillance
[at issue] was lawfully authorized and conducted. " 50 U.S.C.

§ 1806 (f) . The district court's review of the FISA Judge's

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decision is, like the FISA Judge's decision itself, deferential.
" [A] reviewing court [has] no greater authority to second-guess
the executive branch's certifications than has the FISA Judge. "
Duggan, 743 F.2d at 77.

FISA applications are likely to contain allegedly
sensitive information relating to perceived issues of national
security. The applications are required to set forth how and why
the Executive Branch knows what it knows, which may include
references to covert agents and informers. For. this reason, "'ex
parte, in camera determination is to be the rule. '" Id. at 78
(quoting United States v. Belfield, 692 F.2d 141, 147 (D.C. Cir.
1982) ) . The district court has the "discretion to disclose
portions of [relevant materials], under appropriate protective
procedures, [but] only if [it] decides that such disclosure is
'necessary to make an accurate determination of the legality of
the surveillance'" or is otherwise required by due process. Id.
(quoting 50 U.S.C. § 1806 (f) ) .

Stewart argues on appeal that the "primary purpose" of
the FISA wiretapping in this case was to pursue a criminal
investigation, not to collect foreign intelligence information.
The district court, having reviewed the FISA materials, concluded
that "all of the surveillance at issue was conducted with the
appropriate purpose, " whether with a "primary purpose" or "a
significant purpose" to obtain foreign intelligence information.
Sattar II, 2003 WL 22137012, at \*12 -\* 13, 2003 U.S. Dist. LEXIS
16164, at \*40 -\* 42.

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Upon our own in camera review of the underlying
material and the district court's order filed under seal, we are
confident that the district court did not err in so concluding.
Since the interceptions meet the "primary purpose" test, we, like
the district court, need not and do not address Stewart's
argument that FISA's new and less demanding "significant purpose"
test is unconstitutional. Cf. In re Sealed Case, 310 F.3d 717,
735 (FISA Ct. Rev. 2002) (rejecting the "primary purpose" test in
favor of a "significant purpose" test). Similarly, based on the
relevant evidence which, as adduced at trial, is outlined above,
the district court did not err in finding there to be "ample
probable cause to believe that the targets of the relevant
surveillance -- Sattar, Yousry, and Sheikh Abdel Rahman -- were
acting as agents of a foreign power" as defined by FISA, i.e.,
al-Gama'a, "and that each of the facilities at which the
surveillance was directed was being used, or was about to be
used, by that target." Sattar II, 2003 WL 22137012, at *7, 2003
U.S. Dist. LEXIS 16164, at *24.

Stewart also argues that she was an inappropriate
target of the surveillance. As the district court noted,
however, Stewart was never designated as a target in any of the
applications at issue; her alleged co-conspirators were. "Once
the proper preconditions are established with respect to a
particular target, there is no requirement in FISA that all those
likely to be overheard engaging in foreign intelligence
conversations be named." Duggan, 743 F.2d at 79. Because

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Stewart's co-conspirators were targeted pursuant to proper
procedures, the Fourth Amendment did not require that Stewart
also be identified or described as a target in order for her
intercepted conversations to be used in a criminal prosecution.
Id. at 79 n. 7.

Stewart further argues that the district court erred in
declining to disclose FISA materials to her counsel. The
district court may order disclosure of FISA materials "under
appropriate security procedures and protective orders, " but "only
where such disclosure is necessary to make an accurate
determination of the legality of the surveillance." 50 U.S.C.
§ 1806 (f) . When the district court "determines that the
surveillance was lawfully authorized and conducted, it shall deny
the motion of the aggrieved person except to the extent that due
process requires discovery or disclosure." Id. § 1806 (g) .

As we have noted, in these circumstances disclosure is
the exception and " 'ex parte, in camera determination is [] the
rule. '" Duggan, 743 F.2d at 78. The need to disclose materials
to defense counsel may arise if the judge determines there to be
"potential irregularities such as possible misrepresentation of
fact, vague identification of the persons to be surveilled or
surveillance records which include a significant amount of
nonforeign intelligence information, calling into question
compliance with the minimization standards contained in the
order." Id. (internal quotation marks and brackets omitted) .
But Stewart does not point to any case where any court has

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ordered disclosure in a situation similar to hers. Upon our own
review of the materials, we conclude that there was no error in
the district court's determination that disclosure was
unnecessary for an accurate determination of the legality of the
surveillance at issue or to satisfy the requirements of due
process.

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materials were submitted by the government, the district court

ii. Disclosure Regarding NSA Surveillance. On
June 16, 2006, Stewart moved to compel disclosure as to whether
she or any of her co-defendants were subject to surveillance by
the National Security Agency ("NSA") . The government filed, ex
parte, a classified response to be reviewed in camera. At a
hearing on September 25, 2006, the government insisted that its
classified submission was properly filed under section 4 of the
Classified Information Procedures Act ( "CIPA") , Pub. L. No.
96-456, 94 Stat. 2025 (1980) (codified at 18 U.S.C. app. 3). The
government also argued that none of the defense counsel was
properly cleared for access to the information and that, "without
going into the details of the classification level of our
submission, I don't think any defense counsel would ever have a
need to know the details of the terrorist surveillance program,
especially in this case." H'g Tr. 13-14, Sept. 25, 2006.

Following the hearing and in response to subsequent orders from

the district court, the government filed supplemental ex parte
confidential responses dated October 6, 2006, October 12, 2006,
and October 13, 2006 for in camera review. After additional

granted, in part, the motion for disclosure, ordering the
government to make specified disclosures, 25 but otherwise denied
the motion. Order, Oct. 17, 2006, at 2. In that public order,

the district court noted that it had filed an "ex parte Order
under seal containing classified information which explains in
detail the reasons for the Court's decision, " and found that
there was a
compelling reason for filing the additional
Order ex parte and under seal because it
contains classified information that cannot
reasonably be segregated from the other
material in the Order, and that such a filing
is consistent with the Classified Procedures
Act and the rights of the defendants. See
[United States] v. Yunis, 867 F.2d 617, 622-
25 (D.C. Cir. 1989) .

Id.

Through CIPA, Congress established procedures for
handling classified information in criminal cases. "Classified
information" is defined to include "information or material that
has been determined by the United States Government pursuant to
an Executive order, statute, or regulation, to require protection
against unauthorized disclosure for reasons of national
security." 18 U.S.C. app. 3 § 1 (a) . CIPA is "meant to protect
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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that does not impair the defendant's right to a fair trial. "
United States v. Aref, 533 F.3d 72, 78 (2d Cir. 2008)
(alterations and internal quotation marks omitted) , cert.
denied., 129 S. Ct. 1582 (2009).

Section 4 of CIPA establishes procedures for discovery
of classified information. It provides :

The court, upon a sufficient showing, may
authorize the United States to delete
specified items of classified information
from documents to be made available to the
defendant through discovery under the Federal
Rules of Criminal Procedure, to substitute a
summary of the information for such
classified documents, or to substitute a
statement admitting relevant facts that the
classified information would tend to prove.
The court may permit the United States to
make a request for such authorization in the
form of a written statement to be inspected
by the court alone. If the court enters an
order granting relief following such an ex
parte showing, the entire text of the
statement of the United States shall be
sealed and preserved in the records of the
court to be made available to the appellate
court in the event of an appeal.

18 U.S.C. app. 3 § 4.

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

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in the common-law privilege against disclosure of state secrets."
Id.

We have recently held that the state-secrets privilege
applies to criminal cases, but that "it must give way under some
circumstances to a criminal defendant's right to present a
meaningful defense." Id. at 79. To determine such
circumstances, we have employed the standard first articulated in
Roviaro v. United States, 353 U.S. 53 (1957), in the context of
the so-called informer's privilege in criminal prosecutions, see
Aref, 533 F.3d at 79-80.26

First, the district court must determine whether the
material in dispute is discoverable, and if so, whether the
state-secrets privilege applies. Id. at 80. It applies if " (1)
there is 'a reasonable danger that compulsion of the evidence
will expose . . . matters which, in the interest of national
security, should not be divulged, ' and (2) the privilege is
' lodged by the head of the department which has control over the
matter, after actual personal consideration by that officer. '"
Id. at 80 (quoting United States v. Reynolds, 345 U.S. 1, 8, 10
(1953) ). If the information is discoverable but the privilege
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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information is helpful or material to the defense, i.e., useful
'to counter the government's case or to bolster a defense. '" Id.
(citation omitted) . In order to be helpful or material, the
evidence "need not rise to the level that would trigger the
Government's obligation under Brady v. Maryland, 373 U.S. 83
(1963), to disclose exculpatory information." Id.

We review the district court's decision to issue a
protective order under CIPA section 4 and Federal Rule of
Criminal Procedure 16 (d) (1) for abuse of discretion. Aref, 522
F.3d at 80. Similarly, we review for abuse of discretion the
district court's finding whether evidence is "helpful" or
"material to the defense." Id.

At the time of the district court's decision and order,
our decision in Aref had not yet issued. As noted in the
district court's public order denying the motion to compel,
however, the district court relied on an opinion by a sister
circuit embracing a test similar to that embraced by the Aref
panel. Order, Oct. 17, 2006, at 2 (citing United States v.
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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Here, the government has invoked the state-secrets
privilege. It asserts that the details of the NSA's operations,
including the surveillance vel non of any particular individual
or group, implicate national security and are among "the nation's
most guarded secrets." Gov't Br. 389-90; id. (quoting Halkins v.
Helms, 598 F.2d 1, 7 (D.C. Cir. 1978)). Where evidence is
intercepted, the sensitive nature of the information might lie
"not so much in the contents of the [information], as in the
time, place, and nature of the government's ability to intercept
the [information] at all." Yunis, 867 F.2d at 623.28

In light of these general concerns and the principles
set forth in Yunis and Aref, and based on our own review of the
underlying materials and the district court's sealed order, we
are satisfied that the district court did not abuse its
discretion or otherwise err in denying Stewart's motion to compel
disclosure.

We note, as we did in Aref, which postdated the
district court's order here, the absence of a formal public
"claim of privilege [] lodged by the head of the department which
has control over the matter, after actual personal consideration
by that officer." Reynolds, 345 U.S. at 7-8; see Aref, 533 F.3d
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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such a flaw "is not necessarily fatal, " and that "[i]t would 'be
of little or no benefit' for us to remand for the purpose of
having the department head agree that disclosure of the
classified information would pose a risk to national security
here." Aref, 533 F.3d at 80. But the absence of the formal
claim is not a trivial matter. We do not demean it. We expect
that, in light of the holding in Aref, we will not need to
address this issue in appeals from future prosecutions in which
the state-secrets privilege is invoked as the government is now
well-informed of this obligation. Cf. id. ("Based on our holding
today . . . we trust that this issue will not arise in future
CIPA cases. ") .

We reject Stewart's claim that the district court erred
in reviewing materials ex parte and in camera. As we noted in
Aref, " [b]oth CIPA section 4 and Rule 16 (d) (1) authorize ex parte
submissions.
When the 'government is seeking to withhold
classified information from the defendant, an adversary hearing
with defense knowledge would defeat the very purpose of the
discovery rules. '" Aref, 533 F.3d at 81.

The CIPA procedures followed by the district court
place all parties involved (except perhaps the government) at a
substantial disadvantage: defendants are hampered in contesting
the assertions that are being made to the court by the
government; district courts and courts of appeals are deprived of
the opportunity for an adversarial proceeding upon which they are
typically dependent in attempting fairly and properly to resolve

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disputes; and the public, as well as the litigants, are deprived
of the assurances that come with public scrutiny of the work of
the courts. The procedures are also, of course, subject to abuse
by the executive. But a method for protection of classified
material is necessary, and these procedures have been established
by Congress and held to be constitutional. We, as did the
district court, therefore accept them as a necessary, if
imperfect, accommodation of the varied interests implicated.

2\. Alleged Trial Errors. Both Sattar and Yousry
challenge various evidentiary rulings made by the district court.
Sattar argues that the court abused its discretion by admitting a
book by Taha and a videotape of Taha, Osama Bin Laden, and other
al-Gama'a members encouraging violence, and by excluding news
footage purporting to depict Israeli violence against Palestinian
demonstrators. In addition, Yousry challenges the exclusion of
several statements he made to FBI agents.

We review a district court's evidentiary rulings for
abuse of discretion. See United States v. Kelley, 551 F.3d 171,
174 (2d Cir. 2009) (per curiam) ; United States v. Anglin, 169
F.3d 154, 162 (2d Cir. 1999) . Here, the district court did not
abuse its discretion with respect to any such rulings.

We are guided by certain basic principles established
by the Federal Rules of Evidence -- that, as a general rule,
" [a]ll relevant evidence is admissible, " Fed. R. Evid. 402, but
that even relevant evidence, although admissible, may be excluded
by the district court "if its probative value is substantially

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outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative
evidence, " Fed. R. Evid. 403. "A district court is obviously in
the best position to do the balancing mandated by Rule 403."
Salameh, 152 F.3d at 110. "We will second-guess a district court
only if there is a clear showing that the court abused its
discretion or acted arbitrarily or irrationally." Id. (internal
quotation marks omitted) ; accord United States v. Szur, 289 F.3d
200, 217 (2d Cir. 2002) .

Taha's book was relevant and admissible as evidence of
the existence of the Count-Two conspiracy to murder persons in a
foreign country. The Bin Laden video was similarly admissible,
and relevant to Taha's intent to murder or kidnap. The district
court did not err in failing to find that the evidence was unduly
prejudicial.

It was also within the district court's discretion to
exclude both the news video, which it found to be of minimal
relevance yet highly prejudicial and confusing, and Yousry's
statements to the FBI, which it found to be essentially
duplicative of Yousry's own testimony.

The district court made a "conscientious assessment of
whether unfair prejudice substantially outweigh [ed] probative
value, " Salameh, 152 F.3d at 110 (internal quotation marks
omitted), and did not otherwise abuse its discretion in making

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this assessment. We therefore will not disturb its judgments on
these grounds.

3\. Allegations of Juror Misconduct. It was brought to
the district court's attention after the jury rendered its
verdict that a juror, referred to by the parties as "Juror # 39,"
had come forward with allegations concerning improprieties during
the jury's deliberations. The defendants requested that the
district court "'follow up' and conduct an inquiry" into these
allegations. Sattar IV, 395 F. Supp. 2d at 74-78. By written
opinion, the district court denied the request. Id. Sattar
argues on appeal that the district court's actions were an abuse
of its discretion, insisting that the court should have met,
post-verdict, with Juror # 39 to conduct an inquiry. We
disagree.

The district court properly construed the request as
one for an evidentiary hearing, and concluded that there was no
"clear, strong, substantial and incontrovertible evidence
that a specific, non-speculative impropriety has occurred, "
United States v. Ianiello, 866 F.2d 540, 543 (2d Cir. 1989),
especially in light of the fact that the juror had "several
opportunities to communicate directly with the court" regarding
any potential improprieties, but failed to do so, Jacobson v.

Henderson, 765 F.2d 12, 15 (2d Cir. 1985). As the district court
explained, "the fact that Juror # 39 had direct access to the
Court and did not complain of any problems supports the
conclusion that these allegations are post hoc efforts caused by

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dissatisfaction that do not require further post-verdict
inquiry." Sattar IV, 395 F. Supp. 2d at 77. We agree.

4\.
Cumulative Error Doctrine. Yousry also argues on

appeal that we should reverse under the cumulative error
doctrine. But the defendants have not identified any error in
the district court's rulings, "and the accumulation of non-errors
does not warrant a new trial." United States v. Lumpkin, 192
F.3d 280, 290 (2d Cir. 1999) .

#### VII. Propriety of the Sentences

The government appeals from the sentences imposed on
the defendants, asserting that they are unreasonable and unduly
lenient. The government's principal brief was submitted prior to
the Supreme Court's decisions in Gall v. United States, 128 S.
Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558
(2007), which, as recognized by this Circuit in its en banc
decision in United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) ,
have significantly altered the landscape of sentencing
jurisprudence. The Supreme Court issued both Gall and Kimbrough
before the government filed its reply brief and oral argument
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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##### A. Standard of Review

The principles that guide our review of the district
court's sentences are, "at first glance, beguilingly simple. "
Cavera, 550 F.3d at 188. Generally, we review for abuse of
discretion. Id. at 189. That "deferential" scrutiny
"encompasses two components: procedural review and substantive
review. " Id.

1\. Procedural Review. We first determine whether the
sentence was procedurally reasonable. See id. Ordinarily, the
district court must first correctly calculate the appropriate
range set forth by the United States Sentencing Guidelines. Id.
at 190. Then it "must form its own view of the nature and
circumstances of the offense and the history and characteristics
of the defendant," id. at 188, as mandated and guided by 18
U.S.C. § 3553 (a) (1) .3º In this context, "we review factual

29 ( ... continued)

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

3º 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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findings for clear error and the court's interpretation of the
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
sentence based on clearly erroneous facts"). In imposing the

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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;

(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) .

sentence, " including "any deviation from the Guidelines range."
Cavera, 550 F.3d at 190.

District courts are "generally free to impose sentences
outside the recommended [Guidelines] range" but "must consider
the extent of the deviation and ensure that the justification is
sufficiently compelling to support the degree of the variance."
Id. at 189 (citations and internal quotation marks omitted) .

Thus, a district court "must satisfy us that it has
'considered the parties' arguments' and that it has a 'reasoned
basis for exercising [its] own legal decisionmaking authority. '"
Id. at 193 (quoting Rita v. United States, 551 U.S. 338, 356
(2007) ) (brackets in Cavera) . When a court commits "significant
procedural error, " we may "remand to the district court so that
it can either explain what it was trying to do, or correct its
mistake and exercise its discretion anew
rather than

proceed [ing] to review the sentence for substantive
reasonableness." Id. at 190 (citations and internal quotation
marks omitted) .

2\. Substantive Review. Once we are satisfied that a
sentence was procedurally proper, we then review the district
court's determination for substantive reasonableness, "tak [ing]
into account the totality of the circumstances, giving due
deference to the sentencing judge's exercise of discretion, and
bearing in mind the institutional advantages of district courts."
Id. at 190. Our role is no more than to "patrol the boundaries
of reasonableness." Id. at 191. Indeed, we "must defer heavily

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to the expertise of district judges, " id. at 193, and will "set
aside a district court's substantive determination only in
exceptional cases where the trial court's decision cannot be
located within the range of permissible decisions, " id. at 189
(internal quotation marks and emphasis omitted) .

We do not "presume that a non-Guidelines sentence is
unreasonable, " nor do we "require 'extraordinary' circumstances
to justify a deviation from the Guidelines range." Id. at 190
(quoting Gall, 128 S. Ct. at 595) . In evaluating a sentence's
substantive reasonableness, "we may take the degree of variance
into account and consider the extent of a deviation from the
Guidelines. '" Id. We may "consider whether the factor, as
explained by the district court, can bear the weight assigned it
under the totality of circumstances in the case." Id. at 191.
" [A] major departure should be supported by a more significant
justification than a minor one." Gall, 128 S. Ct. at 597. "But
we must not employ a rigid mathematical formula that uses the
percentage of a departure as the standard for determining the
strength of the justifications required for a specific sentence. "
Cavera, 550 F.3d at 190 (internal quotation marks omitted) .

Some decisions by the district court may be entitled to
more deference than others. For example, as both the Supreme
Court and we have noted, variations from the Guidelines "may
attract greatest respect when the sentencing judge finds a
particular case outside the heartland to which the Commission
intends individual Guidelines to apply." Kimbrough, 128 S. Ct at

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574-75 (internal quotation marks omitted) ; accord Cavera, 550
F.3d at 192. When, on the other hand, the variation is based on
a general disagreement with the Guidelines' applicability in a
"mine-run case, " then "closer review may be in order. "
Kimbrough, 128 S. Ct at 575.

But such "closer review" is less appropriate where the
Guideline in question is not based on empirical data and national
history. The issuance of that sort of Guideline "do [es] not
exemplify the Commission's exercise of its characteristic
institutional role." Id. " [A] categorical disagreement with and
variance from [such a] Guideline[]," or, at least from the crack
cocaine Guidelines, "is not suspect." Spears v. United States,
129 S. Ct. 840, 843 (2009) (per curiam) .

The Supreme Court has yet to address fully the contours
of the "respect" that should be afforded to "an 'inside the
heartland' departure, " id., from Guidelines created by the
Commission pursuant to its characteristic institutional role.
Such a departure would "necessarily [be] based on a policy
disagreement with the Guidelines" and would "necessarily
disagree [] [with the Guidelines] on a 'categorical basis. '" Id.
We have recognized, however, that "some Guidelines enhancements
and reductions apply without modulation to a wide range of
conduct." Cavera, 550 F.3d at 192. Thus, "a district court may
find that even after giving weight to the [factors that drive the
enhancement or reduction] there is [still] a wide variety of
culpability amongst defendants and, as a result, impose different

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sentences based on the factors identified in § 3553 (a) ." Id. Of
course, irrespective of whether the conduct is found to be inside
or outside the "heartland, " the "district court must explain its
reasons for its chosen sentence." Id. 31

Affording greater discretion to the district courts may
result in greater apparent disparities in sentences. But "the
Supreme Court has made clear its view that disparities in
sentences imposed by different district judges are more likely to
reflect justified differences than are those arising from
differences of opinion among appellate panels." Cavera, 550 F.3d
at 193.

### B. Application to This Case

The government's principal claim of error on appeal is
that the district court abused its discretion by imposing
unreasonably lenient sentences. The government also argues that
the district court erred as a matter of law by failing to apply
the Guidelines terrorism adjustment, U.S.S.G. § 3A1.4, to
Yousry's offense level.

1\. Yousry's Sentence. The district court initially
calculated Yousry's Guidelines range based on a total offense
level of 28 and a criminal history category of I, for a range of
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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applicable Guidelines range should have been enhanced in
accordance with the terrorism enhancement provided by the
Guidelines, U.S.S.G. § 3A1.4. The district court concluded to
the contrary that the terrorism enhancement did not apply to
Yousry because he did not act with the requisite state of mind.
Based on the district court's findings, we agree with its
conclusion.

Upon consideration of the various factors set forth in
section 3553 (a), the district court concluded that a significant
downward variance32 was appropriate, and ultimately sentenced
Yousry to a non-Guidelines sentence of 20 months of imprisonment,
followed by 2 years of supervised release.

#### a. Guidelines Calculations

We review the district court's interpretation of the
Guidelines de novo, and the district court's findings of fact for
clear error. United States v. Legros, 529 F.3d 470, 474 (2d Cir.
2008) . We interpret the Guidelines as though they were a
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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States v. Kirvan, 86 F.3d 309, 311 (2d Cir. 1996). Section

3A1.4, the so-called "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 . . . shall be Category VI.

U.S.S.G. § 3A1.4. The application notes incorporate 18 U.S.C.
§ 2332b (g) (5) by reference. See id. cmt. n.1. That section
defines a "Federal crime of terrorism" as:

an offense that --

(A) is calculated to influence or affect
the conduct of government by intimidation or
coercion, or to retaliate against government
conduct; and

(B) is a violation of [any one of many
statutes, including 18 U.S.C. § 2339A,
relating to the provision of material support
to terrorists, and 18 U.S.C. § 956 (a) (1) ,
relating to conspiracies to murder persons
abroad] .

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

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terrorism. See United States v. Leahy, 169 F.3d 433, 446 (7th
Cir. 1999) .

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

The district court declined to apply the terrorism
enhancement to Yousry's sentence. The court explained:

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

Sent'g Tr. 143-44; see 18 U.S.C. § 2332b (g) (5) (A) (defining
"Federal crime of terrorism"). The government does not challenge
this finding, which we conclude to be consistent with the record
and not clearly erroneous.

Nonetheless, the government argues that the enhancement
is appropriate despite the fact that Yousry has committed neither
a federal crime of terrorism nor any other crime with the intent

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to promote such a crime. According to the government, the
enhancement applies because Yousry's offense was "a felony that
involved
a federal crime of terrorism." U.S.S.G. § 3A1.4
(emphasis added) . But under the "involved" prong of section
3A1.4, the enhancement would be applicable to Yousry only if he
himself had committed a federal crime of terrorism. See Arnaout,
431 F. 3d at 1001 ("The ordinary and plain meaning of 'involved'
means 'to include. '") ; United States v. Graham, 275 F.3d 490, 516
(6th Cir. 2001), cert. denied, 535 U.S. 1026 (2002) ( " [W]e
believe that in the context at hand, the word 'involved'

signifies that a defendant's offense included a federal crime of
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or conspired to commit a federal crime of terrorism as defined in
18 U.S.C. § 2332b (g) (5) .") . And, as the Fourth Circuit has
recognized, commission of a federal crime of terrorism, which
would trigger the "involved" prong of the enhancement,
incorporates "a specific intent requirement, namely, that the
underlying felony was 'calculated to influence or affect the
conduct of government by intimidation or coercion, or to

retaliate against government conduct.' 18 U.S.C. § 2332b (g) (5) . "
United States v. Chandia, 514 F.3d 365, 376 (4th Cir. 2008). So

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the problem for the government remains: there is no evidence that

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Yousry himself sought to influence or affect the conduct of a
government. The enhancement therefore does not apply under the
"involved" prong. See Leahy, 169 F.3d at 446.

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

[A]djustments in Chapter Three [including the
terrorism enhancement] shall be determined on
the basis of the following:

(1) (A) all acts and omissions committed,
aided, abetted, counseled, commanded,
induced, procured, or willfully caused by the
defendant; and

(B) in the case of a jointly undertaken
criminal activity (a criminal plan, scheme,
endeavor, or enterprise undertaken by the
defendant in concert with others, whether or
not charged as a conspiracy), all reasonably
foreseeable acts and omissions of others in
furtherance of the jointly undertaken
criminal activity, that occurred during the
commission of the offense of conviction, in
preparation for that offense, or in the
course of attempting to avoid detection or
responsibility for that offense

U.S.S.G. § 1B1.3 (a) . The government asserts that it was
reasonably foreseeable to Yousry that his co-conspirators were
acting in a manner "calculated to influence or affect the conduct
of government," so that the requirement of section 2332b (g) (5) (A)
is satisfied as to him.

But sections 1B1. 3 (a) (1) (A) and (B) apply to "acts and
omissions," while, as noted above, section 2332b (g) (5) (A)
describes a motivational requirement, a "specific intent."

Chandia, 514 F.3d at 376. We cannot conflate Yousry's acts with
his co-defendants' mental states. As one member of this Court
has pointed out, "We have never regarded mens rea as an 'act' of

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the defendant for purposes of the relevant conduct guideline, nor
should we. " United States v. McHugh, 122 F.3d 153, 158 (2d Cir.
1997) (Newman, J., concurring) . "Section 1B1.3 (a) (1) (A) permits
selection of an enhanced guideline for 'acts' committed by the
defendant.
The natural meaning of 'act' connotes conduct,
and the meaning of the guideline should not be strained to
include state of mind." Id. Here, too, the terrorism
enhancement's motivational requirement, as incorporated by
reference to section 2332b (g) (5) (A), is not an "act" or
"omission" under section 1B1.3 (a) (1) (B) . The enhancement is
therefore not applicable.

We have examined the other arguments made by the
government in support of its expansive reading of the "involved"
prong of the terrorism enhancement and we find them to be
similarly without merit.

### b. Section 3553 (a) Factors

We conclude, then, that the district court properly
calculated Yousry's Guidelines range to be 78 to 97 months. We
must therefore determine in light of that range and the totality
of the circumstances whether Yousry's sentence of 20 months of
imprisonment, imposed following the district court's section
3553 (a) inquiry, was substantively unreasonable.

We need not outline again the nature of the crimes of
which Yousry was convicted. We focus instead on the reasons
given by the district court in support of its downward variance.

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First, the court found that Yousry's conduct was
"unusual and f[e]ll outside the heartland of material support for
terrorist activity. " Sent'g Tr. 150. " [A] district court's
decision to vary from the Guidelines 'may attract greatest
respect when the sentencing judge finds a particular case outside
the "heartland" to which the Commission intends individual
Guidelines to apply. '" Cavera, 550 F.3d at 192 (quoting
Kimbrough, 128 S. Ct. at 574-75). We perceive no basis for
concluding that the district court erred in deciding that to be
the case with respect to Yousry, particularly because he was
acting as a translator, not a lawyer or other professional.

Second, the district court found that "no actual harm
to victims occurred" although the court was "well aware that such
harm is not required and that if such harm occurred the guideline
range would be higher." Sent'g Tr. 150. We conclude that it was
not unreasonable for the district judge to decide that the fact
that no injury occurred in the case mitigated the gravity of
Yousry's offense. 33 The criminal law often punishes the

33 At least in cases like Yousry's where the terrorism
enhancement is found not to apply, 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. 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 Yousry. 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
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substantive commission of a crime more severely than an attempt
to commit the same crime, even when that which separates an
attempt from the substantive commission of an offense is not
culpability but fortuity. Fortuitous events are not
categorically irrelevant to the determination of a just
punishment nor is their consideration necessarily inappropriate.

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As the Supreme Court has recently noted, although " [i]t is
unusual to impose criminal punishment for the consequences of
purely accidental conduct [, ] it is not unusual to punish
10 individuals for the unintended consequences of their unlawful
acts." See, e.g., Dean v. United States, 129 S. Ct. 1849, 1857-
58 (2009) ; id. at 1852 (concluding that a defendant who carried a
firearm during and in relation to a bank robbery in violation of
18 U.S.C. § 924 (c) (1) (A) is subject to a 10 year mandatory
minimum pursuant to 18 U.S.C. § 924 (c) (1) (A) (iii) because his
"firearm [was] discharged" in the course of the robbery, even
though "the gun [went] off accidentally, " was not pointed at
anyone when it discharged, and nobody was hurt) .

Third, the court noted that although Yousry's offenses
were "plainly serious," his "role in the offenses was subservient
to the others involved" in the conspiracy. Sent'g Tr. 150. The
Guidelines were "intended to eliminate national disparity, " but

3 ( .. . continued)

substantial harm caused by her criminality, 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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" [w]e do not, as a general matter, object to district courts'
consideration of similarities and differences among co-defendants
when imposing a sentence. " United States v. Wills, 476 F.3d 103,
109, 110 (2d Cir. 2007) (emphasis omitted), abrogated on other
grounds by Kimbrough, 128 S.Ct. at 574-75, as recognized in
Cavera, 550 F.3d at 191; accord United States v. Williams, 524
F.3d 209, 216 (2d Cir. 2008). We also defer to the district
court's conclusion that Yousry's conduct was less culpable than
that of his co-conspirators. On this basis, we conclude that the
district court did not err by giving weight to this factor.

Fourth, the district court found that Yousry "did not
engage in the offenses for profit and . . . did not support or
believe in the use of violence to achieve what he wanted."
Sent'g Tr. 150. These facts mitigate the gravity of the conduct
at issue. They also affect consideration of the "history and
characteristics of the defendant" and the need to "protect the
public from further crimes of the defendant" and to "afford
adequate deterrence." 18 U.S.C. § 3553 (a) . The court concluded
that a substantial downward variance was thus justified on the
grounds that a lesser degree of punishment than otherwise called
for would be sufficient for purposes of deterrence and the
protection of the public. As the Gall Court noted, a district
court is well-situated to make determinations about the
"character of the defendant" and whether, given such a character,
the defendant is more or less likely "to return to criminal

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behavior" or constitute "a danger to society." Gall, 128 S. Ct.
at 600-01.

The district court did not err in finding that Yousry
was not motivated by potential profit and did not believe in the
use of violence. Nor did it err in considering these factors
while fashioning a non-Guidelines sentence for him. In
evaluating culpability, we cannot discount the relevance of the
defendant's motivations -- i. e. , whether mercenary, see, e.g., 18
U.S.C. § 1958 (murder for hire), or born from a commitment to the
use of violence. The district court acted well within its
discretion in deciding that Yousry was both less dangerous and
more easily deterred than had he been acting on a for-hire basis
or committed to the use of violence for political ends.

Fifth, the district court found that Yousry's
conviction made it "doubtful that the defendant could pursue" his
career as an academic or translator, and therefore that the need
for further deterrence and protection of the public is lessened
because the conviction itself "already visits substantial
punishment on the defendant." Sent'g Tr. 151. The district
court is specifically required by section 3553 (a) to consider the
"just punishment for the offense." 18 U.S.C. § 3553 (a) (2) (A) .

It is difficult to see how a court can properly calibrate a "just
punishment" if it does not consider the collateral effects of a
particular sentence. Upon careful review of the record and the
reasons given by the court, we are convinced that the court did
so appropriately.

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Sixth, the district court found that Yousry provided
"extensive
cooperation" to the government following the
terrorist attacks of September 11, 2001. Sent'g Tr. 151. The
court concluded that this cooperation "demonstrates a willingness
to help law enforcement and reduces the need for rehabilitation
and deterrence." Id. We defer to the district court's
evaluation of the extent of Yousry's cooperation. And of course,
use of a defendant's cooperation to justify significant variances
or departures from the otherwise applicable Guidelines
calculations is commonplace. The government argues that Yousry's
assistance was not as extensive as the district court found it to
be, but we have been given no cause to question the court's
relevant findings of fact or the manner in which it accounted for
them in sentencing.

Seventh, the court found that Yousry "will not be in a
situation to commit the offenses of conviction again, " because
"it is unlikely that he will ever be able to serve as an
interpreter in an official capacity." Id. We defer to this
finding, too. It is not error for a district court to evaluate,
based on the defendant's individual circumstances, the extent of
punishment "necessary to deter [him] from engaging in future
criminal conduct or to protect the public from his future
criminal acts." Gall, 128 S. Ct. at 602; see 18 U.S.C.

§ 3553 (a) (2) (B) & (C) .

The district court did not, of course, assign precise
weights to particular factors. Doing so would presuppose "the

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existence of some ascertainable method of assigning percentages
to various justifications, " and would constitute a species of
"mathematical approach" which has been expressly disavowed by the
Supreme Court as "a classic example of attempting to measure an
inventory of apples by counting oranges." Gall, 128 S. Ct. at
596.

In evaluating the ultimate substantive reasonableness
of Yousry's sentence, we must determine, under the totality of
the circumstances, whether these various factors can "bear the
weight" assigned to them by the district court. We are satisfied
that they can. We are equally satisfied that the district court
"consider [ed] the extent of the deviation and ensure [d] that the
justification [was] sufficiently compelling to support the degree
of variance." Id. at 597.

In conducting our review, we are further satisfied that
the district court did not ignore the Guidelines or "treat them
merely as a body of casual advice." Cavera, 550 F.3d at 189
(internal quotation marks omitted). Even were we inclined to
think that the district court did not appreciate the weight of
the Guidelines -- which, as we say, we are not -- in light of all
of the foregoing, including the court's long-term and intimate
involvement with these proceedings, any such conclusion would be
purely a matter of surmise on our part. See Rita, 551 U.S. at
357-58 (noting that the sentencing judge had "greater familiarity
with [] the individual case and the individual defendant before
him than the Commission or the appeals court") ; see also Gall,

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128 S. Ct. at 597. The district court did not abuse its
discretion in sentencing Yousry.

2\. Sattar's Sentence. The district court calculated
Sattar's total offense level to be 43 and his criminal history
category to be VI, for a Guidelines "range" of life imprisonment.
But in conducting its own independent review, as guided by
section 3553 (a), the district court concluded that such a
sentence would be "seriously disproportionate" to the offense.
Sent'g Tr. 35. The court imposed a sentence of 24 years (288
months) of imprisonment, to be followed by five years of
supervised release.

#### a. Guidelines Calculation

The district court calculated Sattar's sentence, as it
did Yousry's, under the November 2000 Guidelines. The court
ultimately adopted the recommendations of the Probation
Department in making its Guidelines calculation, except insofar
as the district court added enhancements based on Sattar's
obstruction of justice.

i. Enhancements. Sattar's Guidelines "range" of
life imprisonment was arrived at based in part on the sentencing
court's determination that the terrorism enhancement applied to
both Sattar's Count-Two and Count-One conduct. The district
court also enhanced Sattar's sentence on the ground that he
obstructed justice. See U.S.S.G. § 3C1.1.

ii. Departures. Sattar moved for a downward
departure based on the conditions of his confinement. The

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district court recognized that it was able to depart under the
Guidelines for severe conditions of detention, but "because thus
far th[ose conditions] reflect only strict security measures
rather than an abuse of those measures, " it declined to do so.
Sent'g Tr. 33. Instead, the court concluded that it would take
Sattar's conditions of confinement into account in considering
the section 3553 (a) factors.

#### b. Section 3553 (a) Factors

The district court began its section 3553 (a) analysis
with a correct calculation of the applicable Guidelines "range"
-- life imprisonment. The court then imposed the non-Guidelines
sentence of 24 years' imprisonment, for which it gave three
principal reasons.

First, the court concluded that the terrorism
enhancement overstated the seriousness of Sattar's crime by
transforming a Guidelines range of 97 to 121 months to life
imprisonment. The court found that the otherwise-applicable
Guideline range was "relatively low" because Sattar was convicted
of conspiracy to murder and not of murder itself, and that the
terrorism enhancement failed to account for the fact that "no
injury actually occurred in this case." Sent'g Tr. 35. The
district court noted that a variance downward from a Guidelines
range driven upward by the enhancement is permissible when the
enhancement "prevents the penalty from fitting the crime, based
on the facts of th[e] record. " Id. at 35-36 (citing Mandhai, 375
F.3d at 1249) .

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Second, the terrorism enhancement put Sattar in the
highest criminal history category, VI, "without a single past
criminal history point." Id. at 36. The district court
concluded that such a jump "overstates [Sattar's] past conduct
and the likelihood that the defendant after a substantial period
of incarceration would commit further crimes." Id.

Third, the court noted that Sattar had been under
"extremely restrictive conditions of confinement for 4-1/2
years, " and there "is every reason to expect that his conditions
of confinement will continue to be substantially more severe than
the average prisoner." Id. at 37. These conditions include
being kept in a cell for 23 hours a day and under constant
surveillance. As a result, the court concluded, "the punitive
aspects of the defendant's confinement are increased and the
deterrent effect of the defendant's confinement is also
increased." Id.

The court further noted that, for reasons explained in
part under seal, a downward variance is warranted based on
factors relevant to the history and characteristics of the
defendant and the need to afford adequate deterrence. 34 The
district court observed that based on the totality of the
circumstances and on its review of cases presented by the
government as comparators, Sattar's sentence of 24 years'

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

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incarceration does not promote unwarranted sentencing

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disparities.

#### c. Analysis

The government 's principal argument on cross-appeal is
that Sattar's sentence is substantively unreasonable in light of
his conduct and "long-term dedication to violence." Gov't Reply
Br. 39. We have no quarrel with the government as to the nature
and quality of Sattar's conduct. Neither, to any significant
extent, did the district court. It considered, at length, the
seriousness of Sattar's crimes.

" [A] sentence outside the Guidelines carries no
presumption of unreasonableness." Irizarry v. United States, 128
S. Ct. 2198, 2202 (2008). " [T]he Guidelines are only one of the
factors to consider when imposing sentence
11
Gall, 128 S.
Ct. at 602. Taking those precepts as a starting point, we are
satisfied that in fashioning a non-Guidelines sentence, the
district court did not clearly err in according weight to the
factors it identified. As we recently noted in Cavera, "at the
procedural part of review, we will not categorically proscribe
any factor 'concerning the background, character, and conduct' of
the defendant, with the exception of invidious factors." Cavera,
550 F.3d at 191. The object is always to fashion a sentence
"sufficient, but not greater than necessary" to accomplish the
purposes set forth in 18 U.S.C. 3553 (a) . And it was not clear
error for the district court to conclude that a criminal history

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category of VI significantly overstated Sattar's criminal history
and likelihood of committing further offenses.

We have recognized that "the Sentencing Commission had
a rational basis for creating a uniform criminal history category
for all terrorists under [U.S.S.G.] § 3A1.4 (b), because even
terrorists with no prior criminal behavior are unique among
criminals in the likelihood of recidivism, the difficulty of
rehabilitation, and the need for incapacitation." United States
v. Meskini, 319 F.3d 88, 92 (2d Cir.), cert. denied, 538 U.S.
1068 (2003). But in the same virtual breath, we said, "[a] judge
determining that § 3A1.4 (b) over-represents 'the seriousness of
the defendant's past criminal conduct or the likelihood that the
defendant will commit other crimes' always has the discretion
under § 4A1.3 to depart downward in sentencing. U.S.S.G.

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§ 4A1.3." Id.
16
And even with enhancements of magnitude -- i.e., those
that "sharply increase the recommended sentences" -- there still
may be "a wide variety of culpability amongst defendants."
Cavera, 550 F.3d at 192. There may therefore be "different
sentences based on the factors identified in § 3553 (a) ." Id.
Sattar's crimes are indeed grave; he may well be the most
culpable of these defendants. But the district court has a
responsibility, inter alia, "to avoid unwarranted sentence
disparities among defendants with similar records who have been
found guilty of similar conduct, " 18 U.S.C. § 3553 (a) (6) .
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Perhaps all who merit this enhancement are culpable and dangerous

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-- but some among them are more culpable, more dangerous, with
crimes more serious, than others. It is the district court that
is primarily charged with the responsibility for making such
distinctions.

The district court is also in the best position to make
an individual determination about the "history and
characteristics" of a particular defendant, and to adjust the
individualized sentence accordingly. See 18 U.S.C. § 3553 (a) ;
cf. U.S.S.G. § 4A1.3 (permitting downward departure where "the
court concludes that a defendant's criminal history category
significantly over-represents the seriousness of a defendant's
criminal history or the likelihood that the defendant will commit
further crimes") . Upon examining the reasons the district court
gave, we have no reason not to defer to its assessment here.

It was not unreasonable for the district court to
conclude that the severity of the conditions of confinement would
increase the severity of the punishment and the amount of
deterrence associated with a given term of imprisonment in light
of the particular conditions of confinement under which Sattar is
incarcerated. The district court did not abuse its discretion in
varying downward based on those conditions here. We think that
the factors upon which the district court relied in determining
Sattar's appropriate sentence can "bear the weight" the district
court assigned to them. Cavera, 550 F.3d at 191.

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We note, finally, that the court sentenced Sattar to
more than twice what the maximum Guideline sentence would have
been without the terrorism enhancement.

The sentence thus adequately reflected the severity of
the crime.

3\. Stewart's Sentence. Before sentencing Stewart, the
district court calculated her offense level under the November
2000 Guidelines to be 41, her criminal history category to be VI,
and her Guidelines range to be 360 months, or 30 years, the
statutory maximum. The court concluded, however, that a sentence
of 28 months' imprisonment was sufficient but no greater than
necessary to accomplish the purposes set forth in 18 U.S.C.
§ 3553 (a) .

##### a. Guidelines Calculations

i. Enhancements. Over Stewart's objection, the
district court concluded that the terrorism enhancement of
section 3A1.4 applied because she had committed a federal crime
of terrorism. The enhancement was triggered in part by the
district court's finding that Stewart's actions were "calculated
to affect the conduct of the Egyptian government through
intimidation and coercion." Sent'g Tr. 108. The district court
noted that Stewart's "conduct cannot be found to be outside the
heartland of the enhancement, " but stated that it nonetheless
would "take all of the defendant's arguments [as to why the
enhancement did not properly apply to her conduct] into account
in performing the analysis under Section 3553 (a) ." Id.

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The government argued that Stewart committed perjury by

The district court noted that the terrorism enhancement
automatically placed Stewart in criminal history category VI.
The court appeared to accept Stewart's argument that the
enhancement overstated the seriousness of her past conduct or the
likelihood that she would commit further crimes. Instead of
adjusting the criminal history in the context of the Guidelines
calculations themselves, however, the court found this to be "one
of the rare cases" under United States v. Crosby, 397 F.3d 103,
112 (2d Cir. 2005), where it would be more appropriate to
determine the extent of the downward adjustment in the context of
the section 3553 (a) analysis. Sent'g Tr. 109.35

The government also sought an enhancement of Stewart's
sentence on the ground that she obstructed justice. The
Guidelines provide that where a defendant "willfully obstructed
or impeded, or attempted to obstruct or impede, the
administration of justice with respect to the investigation,
prosecution, or sentencing of the instant offense of conviction"
and where the obstructive conduct related to the offense of
conviction or a closely related offense, that the applicable
Guidelines should be enhanced by 2 levels. U.S.S.G. § 3C1.1.

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.

testifying "that she understood that there was a bubble built
into the SAMs whereby the attorneys could issue press releases
containing Abdel Rahman's statements as part of their

representation of him" and testifying about her purported lack of
knowledge of Taha. Sent'g Tr. 111. As we have noted, Taha was a
follower of Abdel Rahman and a military leader in al-Gama'a who
claimed responsibility for the November 1997 massacre at Luxor,
8 and was allegedly part of the Count-Two conspiracy. The district
court noted that there was "evidence to indicate that [Stewart's]
statements were false statements." Id. It concluded, however,
that it was "unnecessary to reach [the question] whether the
defendant knowingly gave false testimony with the intent to
obstruct the proceedings" for two reasons: First, the Guidelines
calculation already provided for the statutory maximum permitted
by the statutes of conviction, and second, a non-Guidelines
sentence was, in the estimation of the court, "reasonable and
most consistent with the factors set forth in Section 3553 (a) . "
Id. at 111-12.

ii. Departures. Stewart sought a downward
departure pursuant to section 5H1.4 of the Guidelines, which
provides that while " [p]hysical condition . . . is not ordinarily
relevant in determining whether a sentence should be outside the
applicable guideline range, " nonetheless "an extraordinary
physical impairment may be a reason to impose a sentence below
the applicable guideline range." U.S.S.G. § 5H1.4. Stewart

proffered substantial documentation of serious illness. As with

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Stewart's criminal history calculations, the district court
concluded that it " [did] not have to reach the question of
whether [Stewart's] medical condition, given her age and
continuing treatment, is sufficient in itself to warrant a
departure from the guidelines, " because it would take that
condition into account in making its determination under section
3553 (a) . Sent'g Tr. 110.

The district court declined to adjust the Guidelines
calculations based on Stewart's argument that she committed her
crime in order to avoid a perceived greater harm as set forth in
"Lesser Harms" policy statement of the Guidelines. See U.S.S.G.
§ 5K2.11. Stewart argued before the district court that her
conduct "was the product of her perception that her client's
health and well-being [were] seriously jeopardized by his
continued imprisonment in the United States. " Stewart Sent'g Br.
44-45. Under the policy statement, where a defendant "commit [s]
a crime in order to avoid a perceived greater harm, " "a reduced
sentence may be appropriate, provided that the circumstances
significantly diminish society's interest in punishing the
conduct, for example, in the case of a mercy killing." U.S.S.G.
§ 5K2.11. However, " [w] here the interest in punishment or
deterrence is not reduced, a reduction in sentence is not
warranted." Id. Here, the district court found this case not to
be one where the interest in punishment or deterrence is reduced.
The policy statement further provides that a reduction in the
otherwise applicable sentence might be appropriate where "conduct

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may not cause or threaten the harm or evil sought to be prevented
by the law proscribing the offense at issue" such as "where a war
veteran possessed a machine gun or grenade as a trophy, or a
school teacher possessed controlled substances for display in a
drug education program. " U.S.S.G. § 5K2.11. But the court
declined to conclude that Stewart's conduct did not cause or
threaten the harm sought to be prevented by the statutes that
Stewart violated.

Stewart also moved for a departure on the ground that
her conduct was "aberrational." A Guidelines policy statement
provides that " [a] sentence below the applicable guideline range
may be warranted in an extraordinary case if the defendant's
criminal conduct constituted aberrant behavior." U.S.S.G.
§ 5K2.20. But the court, noting that Stewart's conduct was
"committed over an extended period of time, involv[ing] repeated
acts of deception, and . . . significant planning, " Sent'g Tr.
110, concluded that such a departure would be inappropriate, and
declined to grant it.

The district court thus reached its final Guidelines
calculation, using the November 2000 Guidelines, with a total
offense level of 41, a criminal history category of VI, and
therefore a Guidelines "range" of 360 months, the statutory
maximum. The government sought a term of life imprisonment;
Stewart sought a non-incarceratory sentence.

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### b. Section 3553 (a) Factors

Based on its section 3553 (a) analysis, the district
court's sentence substantially varied from the applicable
Guidelines range.

As the starting point for its section 3553 (a) analysis,
the court addressed the applicability of the terrorism
enhancement, which "while correct under the guidelines, would
result in an unreasonable result . . . and produce a guideline
range about quadruple the range [that would otherwise apply]
without the enhancement. " Sent'g Tr. 114. The district court
then observed :

First, that Stewart's was an "atypical case" for the
terrorism enhancement inasmuch as "the thrust of the violation
was the provision of a co-conspirator to a terrorist conspiracy, "
id. at 113; second, as with Sattar, that the structure of the
terrorism enhancement prevented the Guidelines from taking into
account the fact that no victim was harmed as a result of the
offense as charged; and third, again as with Sattar, that the
enhancement operated to prevent the Guidelines from taking into
account Stewart's actual criminal history. By virtue of the
terrorism enhancement, Stewart was automatically classified as
within criminal history category VI, the highest possible
category, whereas if her sentence were based on her actual
criminal history, she would have been classified in category I,
the lowest possible category.

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The court therefore concluded that the terrorism
enhancement was "dramatically unreasonable" and "overstates the
seriousness of [her] past conduct and the likelihood that [she]
will repeat the offense." Id. Stewart "has no criminal history
and yet is placed in the highest criminal history category equal
to that of repeat felony offenders for the most serious offenses
including murder and drug trafficking." Id. at 113-14. The
criminal history category was inappropriate, the court
determined, in light of "the likelihood of recidivism, the
difficulty of rehabilitation and the need for incapacitation."
Id. at 114.

The court found that Stewart's opportunity to repeat
"the crimes to 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." Id.
Loss of her license to practice law both removes "the occasion
for her offenses" and "is itself a punishment." Id. at 116.

The district court viewed Stewart's personal
characteristics as "extraordinary" and thought they "argue [d]
strongly in favor of a substantial downward variance." Id. at
114. The court described her as a dedicated public servant who
had, throughout her career, "represented the poor, the
disadvantaged and the unpopular, often as a Court-appointed
attorney, " thereby providing a "service not only to her clients
but to the nation." Id. at 115-16. And " [h]aving spent her

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professional career often representing the poor, she is now, at
the end of her career, financially destitute." Id. at 115.

The court also took into account Stewart's ill health
-- she had, for example, suffered from cancer, for which she had
undergone surgery and radiation therapy, and for which there is a
significant chance of recurrence. The district court was of the
view that in light of those conditions and her age, 67 years old
at the time, prison would be "particularly difficult" for her,
and that at her age, moreover, her sentence would "represent a
greater portion of her remaining life than for a younger
defendant and provide increased punishment." Id. at 117.

#### c. Analysis

i. The Scope of Review. The government's
principal argument on appeal is that in light of the crimes of
which Stewart stands convicted, her sentence was substantively
unreasonable. Section 3553 (a) instructs that the sentence must
"reflect the seriousness of the offense,
promote respect

for the law, and
provide just punishment for the offense"
and "afford adequate deterrence to criminal conduct." 18 U.S.C.
§ 3553 (a) (2) (A) & (B). Our review for substantive reasonableness
is a "particularly deferential form of abuse-of-discretion
review. " Cavera, 550 F.3d at 188 n.5 (citing Gall 128 S. Ct. at
591) . But our review must also be "meaningful." Gall, 128 S.

Ct. at 597; cf. Gerard E. Lynch, Letting Guidelines Be Guidelines
(And Judges Be Judges), Ohio St. J. Crim. L. Amici: Views From
the Field (Jan. 2008), at http://osjcl.blogspot.com/ (" [W] e

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should let (appellate) judges be judges
performing their
traditional function of reining in excess and gradually
developing a 'common law' of what is and is not sensible. "
(emphasis deleted) ) .

Like the district court, we are impressed by the
factors that figured in Stewart's modest sentence -- particularly
her admirable history of providing, at no little personal cost to
herself, proficient legal services in difficult cases to those
who could not otherwise afford them. We think it noteworthy,
moreover, that the last of the acts for which Stewart is being
punished occurred a short time before the September 11 attacks on
the United States. That carnage might have raised in her, as it
surely has in many or most of us, a heightened awareness of and
sensitivity to the imminent dangers of terrorism and the possible
scope of the deadly capabilities of the terrorists with whom she
was dealing.

We also recognize, as did the district court, that the
terrorism enhancement may apply to persons who are culpable in
substantially different degrees; that Stewart's culpability may
well be understood to be less than Sattar's; and that the
district court may differentiate between different levels of
culpable conduct that nonetheless trigger the same substantial
enhancement. Yet Stewart's sentence is strikingly low in light
of what the district court correctly described as the
"irreducible core of [her] extraordinarily severe criminal
conduct, " Sent'g Tr. 118, "which was committed over an extended

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period of time, involved repeated acts of deception, and
involve [d] significant planning," id. at 110.

We are obliged to "patrol the boundaries of [the]
reasonableness" of a sentence. Cavera, 550 F.3d at 191. While
we will not lightly deem unreasonable a sentence imposed by the
judge who has "access to, and greater familiarity with, the
individual case and the individual defendant before him than the
[Sentencing] Commission or the appeals court, " Rita, 551 U.S. at
357-58, we think that in light of the fact Stewart used her
privileged status as a lawyer to facilitate her serious violation
of the law, and possibly committed perjury at trial in an attempt
to avoid punishment for her conduct, her sentence at least tests
those "boundaries. "

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

The district court seemed to appreciate that fact,
noting that Stewart "abused her position as a lawyer" in
committing her crimes. Sent'g Tr. 118. The court did not,
however, explain how and to what extent the sentence reflected

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the seriousness of the crimes of conviction in light of the fact
that Stewart was engaged as a member of the bar when she
committed them.

The question therefore remains whether, because she was
an experienced and dedicated lawyer acting as such when she broke
the law in the manner that she did, her punishment should have
been greater than it was. 36

iii. A Comparison of Yousry's and Stewart's
Sentences. A comparison of Stewart's and Yousry's offense
conduct serves to highlight the seriousness of Stewart's crimes
and the seemingly modest sentence she received for it. Unlike
Yousry, Stewart publicly disseminated "potentially lethal"
statements on Abdel Rahman's behalf. Unlike Yousry, Stewart was
convicted of making false statements to the government when she
agreed to abide by the terms of the SAMs. Unlike Yousry, Stewart
was a member of the bar and therefore acting as an officer of the

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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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court. See, e.g., United States v. Seltzer, 227 F.3d 36, 41 (2d
Cir. 2000). She was legally knowledgeable, highly experienced,
and politically sophisticated, a lawyer acting in her
professional capacity; he was a student working for her and Abdel
Rahman as a translator.

Yet Yousry's sentence was 20 months; Stewart's only
eight months longer.

iv. Stewart's Alleged Perjury. Also unlike
Yousry, Stewart may well have obstructed justice at trial. The
government, supported by substantial evidence, argued that
Stewart committed perjury at trial. The district court
summarized the argument as follows :

First, the government contends that Ms.
Stewart knowingly gave false testimony when
she testified that she understood that there
was a bubble built into the SAMs whereby the
attorneys could issue press releases
containing Abdel Rahman's statements as part
of their representation of him.

The government also contends that Ms. Stewart
testified falsely when she denied knowing who
Taha was until learning about him in the
course of the trial except for an article
that she came across in her representation of
Yasir Ahmed.

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

As noted, the district court gave two reasons for not
making such a finding. First, it concluded that because
Stewart's Guidelines calculations had reached the statutory
maximum of 360 months, a finding of obstruction of justice would
not have changed the calculation. This would be true if the

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terrorism enhancement had been applied in Stewart's case, but the
district court, after determining that Stewart's conduct was in
the enhancement's "heartland, " may not have applied it. See
infra [124-25]. And even were it true, the question of Stewart's
perjury is nonetheless relevant to her sentence pursuant to
section 3553. Section 3553 (a) requires the district court to
impose a sentence "sufficient, but not greater than necessary"
to, among other things, promote respect for the law. See 18
U.S.C. § 3553 (a) (2). Whether Stewart lied to the jury under oath
or upon affirmation at her trial is relevant to whether her
sentence was "sufficient" under the circumstances.

The district court's second reason for declining to
determine whether Stewart committed perjury during the course of
her testimony was that it had determined that a non-Guidelines
sentence was "reasonable and most consistent with the factors set
forth in Section 3553 (a) ." Sent'g Tr. 111-12. But as noted, we
think that whether Stewart lied under oath at her trial is
directly relevant to whether her sentence was appropriate in
light of Section 3553 (a) . Her willingness as a lawyer knowingly
and falsely to affirm her intention to obey the SAMs and then to
seek to cover up this knowing violation of the law with
perjurious testimony might well, if proven, influence our
conclusion as to the propriety of her sentence. Any cover-up or
attempt to evade responsibility by a failure to tell the truth
upon oath or affirmation at her trial would compound the gravity
of her crime.

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We conclude that by declining to decide whether Stewart
committed perjury or otherwise obstructed justice, the district
court procedurally erred.

v. Effect of Lack of Harm. Noting particularly
that the absence of harm was fortuitous and not the result of
efforts by Stewart to prevent harm, Judge Walker argues that it
was error both procedural and substantive for the district court
to use that factor as a basis for downward variance, especially
such a large one. The issue is discussed also in Judge
Calabresi's opinion. This Court makes no ruling on that issue
now, in the circumstances of Stewart's case. We note simply
that it is a serious issue to be given consideration by the
district court upon reevaluating Stewart's sentence. In view of
the fact that the court must resentence, we think it preferable
to defer this issue until after it has been reconsidered by the
court, upon its consideration of the commentary in the opinions
of Judges Walker and Calabresi.

##### vi. The Terrorism Enhancement. The terrorism

enhancement is set forth in section 3A1.4 of the Guidelines.

Terrorism

(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.

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Whether or not the district court applied the

terrorism enhancement to Stewart in its Guidelines calculation
may be subject to disagreement. Without reaching that issue, we
nonetheless note that in light of the facts of this case and the
judgments of conviction, which we affirm, the terrorism
enhancement plainly applies as a matter of law to the district
court's calculation of the applicable Guidelines range,
irrespective of whether Stewart's behavior was "atypical" and
whether it resulted in death or injury, 37 factors that may (or
may not) be employed in rendering the ultimate sentence.

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It seems possible that, in fact, the district court
rejected the terrorism enhancement based on United States v.
Crosby, 397 F.3d 103 (2d Cir. 2005), by deeming this to be one of
those cases where it would be more appropriate to determine the
extent of the downward adjustment in the context of the section
3553 (a) analysis. It may be that this invocation of Crosby led
the district court to redetermine an adjusted offense level
without application of the terrorism enhancement and then
consider, in its section 3553 (a) analysis, whether Stewart's
personal characteristics warranted a variance below the
sentencing range calculated without the enhancement. If the
district court ultimately sentenced Stewart without "precise
calculation of the applicable Guidelines range, " Crosby, 397 F.3d
at 112, it would, we conclude, be error.

It is possible to read the record to indicate that
although, in compliance with Supreme Court instructions, the
district court began its Guidelines analysis by correctly
calculating an adjusted offense level of 41 with a resulting
sentencing range of 360 months, see Gall, 128 S. Ct. at 596, the
court nonetheless treated the terrorism enhancement as
inapplicable and redetermined a sentencing range of 78 to 97
months without that enhancement. Perhaps the court then relied
on its view of Stewart's personal characteristics to justify a
variance substantially below this redetermined range. This too
would be error because the district court, by effectively
recalculating the Guidelines range, would have decided, in
substance, that the terrorism enhancement was inapplicable to
Stewart's Guidelines calculation.

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Whether or not the district court gave appropriate
consideration in its section 3553 (a) analysis to whether support
of terrorism is an aggravating factor in this case, similarly,
may be subject to disagreement. Judge Walker argues that the
district court's sentence was deficient in this respect, and
constituted both procedural and substantive error. But we need
not decide whether error in this respect, if any, would be
procedural or substantive. Without reaching these issues, and
without suggesting that the district court was bound to follow
either the Guidelines generally or any Guidelines enhancement
specifically in imposing its section 3553 (a) sentence, we note
that the district court's section 3553 (a) analysis must include
consideration of whether support of terrorism is an aggravating
factor in light of the court's obligation to consider "the
nature and circumstances of [Stewart's] offense" and "the need
for the sentence imposed
to reflect the seriousness of the
offense." 18 U.S.C. § 3553 (a) (1) - (2) (A) .

###### d. Remand

A district court's failure to find particular facts
will in no way impede our review in some, perhaps in most,
situations; this, however, is not one of them. Especially in
light of the absence of a finding that Stewart did not commit
perjury at trial or otherwise obstruct justice, we think it
preferable not to determine whether her sentence was
substantively reasonable.

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We therefore remand this matter to the district court
for resentencing, in the course of which we direct the court to
determine the issue of perjury and if it finds such perjury, to
resentence Stewart so as to reflect that finding. The 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. Finally, the district court should further consider
the overall question whether the sentence to be given is
appropriate in view of the magnitude of the offense, which the
court itself has explicitly recognized. Although we do not
preclude the district court's election to continue to impose a
non-Guidelines sentence, we do require that such a sentence,
selected after the reconsideration we have directed, begin with
the terrorism enhancement and take that enhancement into
account. We have serious doubts that the sentence given was
reasonable, but think it appropriate to hear from the district
court further before deciding the issue.

We have identified actions taken or not taken by the
district court in imposing sentence that we conclude constituted
procedural error and thus require resentencing. Other issues
are raised by Judge Walker, who finds that they resulted in
procedural error and substantive unreasonableness, and addressed
by Judge Calabresi in response. To the extent we did not
discuss or rule on those issues in this majority opinion, our

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silence should not be construed by the district court, or by
others relying on this opinion, to mean that the majority has
adopted Judge Calabresi's views or rejected Judge Walker's. We
have not.

Although we find no procedural or substantive error in
connection with the sentencing of Sattar and Yousry, we
nonetheless remand their cases, too. We conclude that, inasmuch
as the interrelationship among the sentences of the co-
defendants is a principal consideration as to a proper sentence
of Stewart, the district court should have the ability, if not
the obligation, to resentence them as well.

After the district court completes the resentencing,
jurisdiction may be restored to this Court by letter from any
party, and the Office of the Clerk of this Court shall set an
expeditious briefing schedule and refer the matter to this panel
for further review.

###### CONCLUSION

For the foregoing reasons, we affirm the conviction of
Stewart, but remand this cause to the district court for
resentencing of Stewart, see United States v. Phillips, 431 F.3d
86, 90 (2d Cir. 2005), and resentencing of Sattar or Yousry or
both if the district court determines that they should receive
different sentences in light of the sentence imposed on Stewart.
Inasmuch as the current sentences will remain in effect as to
Stewart and Yousry until the district court resentences Stewart
-- and Sattar or Yousry if it decides to do so -- and in light

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of the fact that we affirm on all issues related to the guilt of
all defendants, the district court is directed to order Stewart
and Yousry to surrender forthwith to begin serving their terms
of incarceration.

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CALABRESI, Circuit Judge, concurring:

I join Judge Sack's opinion in full. I write separately to comment on our decision with
respect to Stewart's sentence. In doing so, I do not wish to express any disagreement with the
majority opinion, which has withheld a final judgment on various aspects of Stewart's sentence
in light of the decision to remand. Where I express views on which the majority opinion is silent,
I write only for myself.

When a judge of extraordinary ability and a well-earned reputation for exceptional
judgment has spent as much time on a case like this, making many decisions of tremendous
difficulty- which on review we are all in agreement were correct and wisely done-even the
usual deference that the Supreme Court indicated should be paid to the district court's sentencing
must constitute an understatement. This is especially so with respect to any notions as to the
substantive reasonableness of a sentence. We may find that there are some procedural or

technical matters that warrant more consideration by the district judge, such as the question of
whether Stewart committed perjury and the relevance of this in determining an appropriate
sentence, given the district court's treatment of the terrorism enhancement. But for us-who
have not been involved in the case and do not know all the backs and forths, some of which may
even be best left not fully articulated-to second guess the district court's judgment seems to me
to be precisely what both the Supreme Court and our court sitting en banc in United States v.
Cavera, 550 F.3d 180, 194 (2d Cir. 2008), have said we should not do. I join the majority
opinion because I understand it to avoid second guessing, and because I believe it wisely
provides the district court with an opportunity to explain further and perhaps to modify the
sentence it has imposed. I write here to explore some of the principal issues on which this panel

.. ]
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is divided and to give fuller expression to the importance of having appellate courts appreciate
the limited, though still important, institutional role we play, particularly in a case such as this
one, where the temptation to go beyond that role is so great.1

After calculating Stewart's sentence under the Guidelines, the district court applied the §
3553(a) factors and concluded that the effect of the terrorism enhancement, "while correct under
the guidelines, would result in an unreasonable result" in this particular case. Sent'g Tr. 114.
The district court arrived at this conclusion based on, inter alia, (1) what it described as the
somewhat atypical nature of Stewart's case for the imposition of the terrorism enhancement, and
(2) the lack of evidence that any victim was harmed as a result of the charged offense.2 Id. at

' 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
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 the terrorism enhancement-which "produce[d] a guideline range about quadruple the range
without that enhancement," id. at 114- resulted in a sentencing range for Stewart that was too
high. 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 [28], or that
the district court "[r]emov[ed]" Stewart from the "terrorism spectrum" because of its view that
her crime was atypical, id. at [26]-strike me as misleading. Furthermore, in doing this, and

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113\. While I agree with the majority opinion that these grounds do not render the terrorism
enhancement inapplicable in determining the relevant Guidelines range, I do believe that each
ground, if properly articulated, is, as a procedural matter, within the district court's discretion to
consider in its application of the § 3553(a) factors. What is more, I would be extremely reluctant
to disturb a district court's careful effort to look to the unique circumstances of a defendant like
Stewart and arrive at an individualized sentence where the Guidelines recommendation is
controlled by an undeniably broad enhancement (or reduction) like the terrorism enhancement.
A.

When the terrorism enhancement is applied, it has dramatic consequences on the
applicable Guidelines range because it automatically increases both the offense level of a crime
and the defendant's Criminal History Category. In Stewart's case, for example, the
recommended sentence range without the enhancement was 78 to 97 months, while imposition of
the enhancement resulted in a recommended sentence of 360 months, the statutory maximum.
Yet as both the majority opinion and Judge Walker, in his partial dissent, recognize, the terrorism
enhancement casts a very broad net. In this case, that breadth was compounded by the fact that
the "federal crime of terrorism" for which Stewart was convicted, i.e. the provision of material
support, itself covers a wide range of conduct of varying degrees of culpability ranging from the
supply of lodging to the contribution of "weapons, lethal substances, [and] explosives." See 18

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).

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U.S.C. § 2339A. When a Guidelines recommendation has such dramatic consequences and yet
covers a multitude of sins, unusually broad sentencing discretion in the district court is essential.
Indeed, it must be so to comply with the Supreme Court's remedial holding in United States v.
Booker, 543 U.S. 220, 244 (2005).

We articulated this precise point in Cavera, recognizing that "some Guidelines
enhancements and reductions apply without modulation to a wide range of conduct." 550 F.3d at
192. We identified as examples several financial crimes where the recommended sentence under
the Guidelines varies dramatically according to the money involved, but the culpability of an
individual defendant might not be captured accurately by a single variable like financial impact.
Id. Perhaps more closely analogous to the terrorism enhancement, we pointed to the Armed
Career Criminal Guidelines, under which the recommended sentences for firearms offenses
increase sharply if the defendant has a prior conviction for a "crime of violence"-an expansive
term that places crimes like attempted burglary of a dwelling under the same umbrella as crimes
like murder and rape. See id. (citing U.S.S.G. § 2K2.1(a)). The terrorism enhancement in its
breadth of coverage is akin to these examples from Cavera. The majority opinion understands
this when it says that the terrorism enhancement "may apply to persons who are culpable in
substantially different degrees," and that the district court "may differentiate between different
levels of culpable conduct that nonetheless trigger the same substantial enhancement." Maj. Op.
at [119].

We indicated in Cavera that when a district court faces such over- and under-inclusive
Guidelines recommendations and when, after considering the § 3553(a) factors, it promulgates a
sentence that varies from that recommendation, the district court's decision, "if adequately

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explained, should be reviewed especially deferentially." 550 F.3d at 192 (emphasis added).

Nothing we hold here should be understood to conflict with that principle, or to cast doubt on the
district court's apparent conclusion that there must be much room for discretion under the
terrorism enhancement.3

While we have raised questions about the closeness of Yousry and Stewart's sentences in
light of Stewart's seemingly greater level of responsibility and status as a lawyer, and while we
would benefit from greater explanation by the district court on this and other issues, it remains
the district court's task, for purposes of sentencing under § 3553(a), to assess where Stewart's
criminal behavior falls within the spectrum of terrorism enhancement culpability. And I would
be very reluctant-when and if I had to review a sentence in this case for substantive
reasonableness-to find an abuse of discretion in a thoroughly-explained conclusion by the

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
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 [29] 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 [26]. 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.

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district court that Stewart's conduct, though undeniably serious, was significantly less serious

than that of other defendants subject to the terrorism enhancement.

I am more ambivalent about the degree to which absence of harm is a valid ground on
which to mitigate a sentence. I join the majority opinion in withholding judgment on this issue
with respect to Stewart. My general view, however, is that while a district court ought to be
careful about giving too much weight to a factor like harm that might vary based on events
beyond the defendant's control, we should not preclude a district court from giving lack of harm
some weight, even for some crimes of terrorism.

Whether it is fair to assign different levels of culpability in criminal sentencing to the
same criminal conduct based on the fortuity of whether harm results has long been a contested
question in Anglo-American jurisprudence. See H.L.A. HART, THE CONCEPT OF LAW 131 (1968)
("Why should the accidental fact that an intended harmful outcome has not occurred be ground
for punishing less a criminal who may be equally dangerous and equally wicked?"). But
whatever significance the consequences of a defendant's actions ought to have, it is an inevitable
part of human nature-and our law-that we as a society do give consequences considerable
weight when we mete out punishment and blame.4 This is deeply entrenched in our legal system.

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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).

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The majority opinion identifies the law of attempts as one generally accepted instantiation of this
tendency, Maj. Op. at [99-100], but there are many others-such as crimes of culpable risk
creation, like vehicular homicide. And while it is true that material support to terrorism is a
complete crime rather than an inchoate one, and so fully punishable even if no further harm
results, it simply does not follow that the amount of punishment may not at least in part depend
on the harm that occurred. The level of punishment for a completed crime varies all the time
based on the amount of harm that has occurred, and the Guidelines themselves often directly
embrace such a policy.5

Judge Walker suggests terrorism is different, and that, at least in the "very broad
heartland of cases," it is procedural error for the district court to consider absence of harm as
relevant to the application of the terrorism enhancement and ultimately to the imposition of a
sentence.6 He argues that treating harm as a consideration relevant to sentencing those convicted

5 Judge Walker identifies several examples in his opinion, though he reaches a different
conclusion about their import. See Op. of J. Walker at [28 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 . . . . ").

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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
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of terrorism related crimes, such as for material support, would effectively nullify the policy
considerations of Congress and the Sentencing Commission, who have not made reductions for
lack of harm part of the terrorism enhancement. Even if the Guidelines do not themselves make
lack of harm relevant for the application of the terrorism enhancement-and they fail to do so
only in the narrow sense that the enhancement does not positively reflect the existence of
injury-the Supreme Court has made clear that a district court, which has "greater familiarity
with [] the individual case and the individual defendant," may properly decide that sentencing
judgments made by the Guidelines fail properly to reflect the § 3553(a) considerations. See Rita
v. United States, 551 U.S. 338, 351 (2007).

What is more, the Court has evidenced profound skepticism toward arguments that
certain policy judgments, which require departing from the Guidelines, have implicitly been
taken off the table as a result of congressional silence or inaction. See Kimbrough v. United
States, 128 S. Ct. 558, 570-73 (2007). As the Court explained, it is usually inappropriate to draw
inferences from congressional silence on sentencing practices because Congress has shown that,

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 [29 n.13]. That is true,
but it is not relevant to the precise issue we face because the district court here asserted that the
enhancement applied to Stewart under the Guidelines, and the majority opinion has stated clearly
that any decision to the contrary would be error. Maj. Op. at [125-26] 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.

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when it wants to, it knows how to direct levels of sentencing in express terms. Id. at 571 (citing
28 U.S.C. § 994(h), which required Sentencing Commission to set Guidelines sentences for
recidivist offenders at or near the statutory maximum). As a result, the fact that Congress
increased the statutory maximum in 2001 for material support convictions that caused death, see
Op. of J. Walker at [28], and did so without saying anything whatever about how a district court
may treat harm when issuing a sentence that is less than the applicable maximum, cannot be read
to diminish the discretion the district court otherwise has under § 3553(a).7

I also rather doubt that we would be willing to apply consistently a principle that harm is
irrelevant in terrorism cases. Consider two potential defendants, both of whom provide funds to
different terrorists and have the requisite mens rea to support a conviction under 18 U.S.C §
2239A. In one case, the terrorist whom the defendant funds attempts to detonate an explosive in
a public place, but the explosives do not go off properly and so cause only a few injuries and one
death that results, in part also, from inadequate medical treatment. In the second case, the
terrorist's detonation attempt succeeds, blowing up a city bus and causing a major traffic
collision that kills or injures hundreds of people. While reasonable minds might differ as to the
weight the level of harm should be given in this scenario, surely we would not hold it
procedurally unreasonable for the district court to take the amount of harm into account when
sentencing the respective defendants and-while sentencing the first severely-use it as a reason
to give the second defendant a much greater sentence. Yet if that is so, the converse must hold,

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.

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because "sentencing discretion is like an elevator in that it must run in both directions." Cavera,
550 F.3d at 194. To concede, as I think we must, that when hundreds of people are injured or
killed rather than just one a district court may take the amount of harm into account and impose a
higher sentence, but then to deny the court that same discretion to reach a lower sentence when,
through fortuity, no harm results, would manifestly contravene that principle.8

II.

I have focused to this point on factors the district court may consider procedurally when
sentencing, but this case also illustrates the importance of our adherence as an appellate court to
the right procedure for review of district court sentences. In Cavera, we explained that our
review involves a two-step process. We first ensure that the district court has not committed
procedural error, and only later engage in substantive review to examine whether the district
court has rendered a sentence that is one of the "exceptional cases where the trial court's decision
cannot be located within the range of permissible decisions." 550 F.3d at 189 (internal

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]. The majority opinion also quite
properly leaves open, at this time, the question of whether the district court's actual use of lack of
harm as grounds upon which to mitigate Stewart's sentence led to a result that was erroneous.

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Like the majority opinion, I do not yet express any view 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.

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quotations and emphasis omitted). Following this sequence of review is central to our limited
role. Because district courts "have an institutional advantage over appellate courts" when
making sentencing decisions, Koon v. United States, 518 U.S. 81, 98 (1996), our job as a
reviewing court is mainly to ensure that a district court's sentence "resulted from the district
court's considered judgment as to what was necessary to address the various, often conflicting,
purposes of sentencing." Cavera, 550 F.3d at 189-90. Evaluating the substantive reasonableness
of a sentence before we have found it free from procedural defect risks the substitution of our
"considered judgment" for that of the district court.

When we identify procedural error, we have recognized the desirability of remanding to
the district court to let it correct its mistake and "exercise its discretion anew," rather than
proceeding prematurely to review the sentence for substantive reasonableness. See Cavera, 550
F.3d at 190. While we have not held that this course must necessarily be followed in all
instances, a review of our cases makes clear that it is the ordinary and much preferred remedy.
See, e.g., United States v. Williams, 558 F.3d 166, 176 (2d Cir. 2009) (“In light of our decision to
remand, we reject, as premature, [the defendant's] challenge to the substantive reasonability of
his sentence."); United States v. Williams, 524 F.3d 209, 215-17 (2d Cir. 2008) (vacating
sentence without reaching issue of whether sentence was substantively reasonable "because we
conclude that the district judge committed procedural error"); United States v. Wills, 476 F.3d
103, 111 n.6 (2d Cir. 2007) ("Because we hold that the sentence is procedurally unreasonable,
we do not reach the government's argument that if [the district court had not relied on

procedurally erroneous factors,] [Defendant's] sentence should be deemed unreasonable based on

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its length alone.") (emphasis added), abrogated on other grounds by Kimbrough, 128 S. Ct. at
574-75, as recognized in Cavera, 550 F.3d at 191.

Other circuits have expressed a similar preference, and have sometimes stated it in even
more categorical terms: first remand to allow a district court to correct procedural errors and only
later review for substantive reasonableness.9 This is no formalism. It is consonant with our
system of sentencing, which asks the district court to reach a complete judgment about the
appropriate sentence in light of the factors enumerated in § 3553(a). Procedural errors prevent
the district court from properly arriving at such a holistic judgment. And in light of our
obligation to defer significantly to a procedurally correct sentence, we should almost always wait
until we have such a sentence to review before evaluating overall reasonableness.

Judge Walker argues that judicial efficiency compels us to identify substantive error at
the same time we remand for procedural error. No one wants unnecessary appeals. But I fail to
see any systemic advantages from issuing advisory opinions on the reasonableness of sentences
that we are vacating, and hence that are now no longer really before us. The decision to remand
for procedural unreasonableness presupposes that we believe the district court might not have
imposed the same sentence but for the procedural defect. See, e.g., United States v. Jass, 569
F.3d 47, 68 (2d Cir. 2009) (recognizing that procedural errors in sentencing are subject to
harmless error rule). When we remand for procedural flaws, it may seem inviting to comment at

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).

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the same time on other factors relied upon by the district court that, though procedurally proper,
do not, in our judgment, bear the weight the district court attributed to them. It may even be
appropriate in dicta to suggest our preliminary view on the matter. But it is not our role to weigh
the individual § 3553(a) factors ourselves and, in a holding, to give binding advice to the district
court based on our views. See Gall, 128 S. Ct. at 602.

Let me repeat: Substantive reasonableness calls for review of the overall sentence, not
individual factors. And § 3553(a) calls for balancing all the relevant factors. As a result, any
non-harmless procedural errors necessarily affect the sentencing calculus. Our task is to evaluate
(deferentially) the district court's finished product, and not to grade its individual ingredients. To
do this properly, we must almost always wait for the district court to correct the procedural errors
that we have identified and to explain its sentence, and only then to consider the substantive
reasonableness of the sentence.

I do not mean to suggest an absolutist view on this matter. It may be that there are cases
where there is procedural error that-even though it is not harmless-is sufficiently separate
from any serious substantive concerns that we have, so as to make it plausible to address the two
issues at once. I cannot think of any such cases offhand, however. And, for the reasons well
expressed by the majority opinion in its decision to remand, this case is not one of them.

III.

Another, perhaps uncomfortable, issue deserves discussion. Stewart does not appear to
have been the only member of Abdel Rahman's legal team both to agree to abide by the SAMs
imposed upon Rahman and then subsequently to violate them. One of Rahman's lawyers,
Abdeen Jabara, read to Rahman newspaper articles and letters from followers, while another,

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Ramsey Clark, the former Attorney General of the United States, acknowledged issuing a
statement to the media on behalf of Rahman.10 Yet neither Jabara nor Clark was prosecuted for
these apparent violations. This does not mean that the Government's decision to prosecute only
Stewart was invidious or improper, and I join the majority opinion in rejecting Stewart's claim of
selective prosecution. But though Stewart's selective prosecution challenge fails, it does not
follow that the alleged misconduct of Jabara and Clark-whom the district court may well have
decided shared in certain respects the culpable behavior for which Stewart was convicted-is
entirely irrelevant to Stewart and to her sentence. I think it possible that it is relevant, and I
believe that usually only the district court is positioned to evaluate that relevance.

As to claims of selective prosecution, we have properly recognized that our scope of
review is limited, for "the decision as to whether to prosecute generally rests within the broad
discretion of the prosecutor." United States v. Alameh, 341 F.3d 167, 173 (2d Cir. 2003). As the
Supreme Court has explained, this is because "the decision to prosecute is particularly ill-suited
to judicial review." Wayte v. United States, 470 U.S. 598, 607 (1985). Yet this does not mean
that unfettered (even when it is non-invidious) prosecutorial discretion over who gets charged,
and for what, is categorically desirable. Quite the contrary: while prosecutorial discretion may be
salutary in a wide variety of cases, when left entirely without any controls it will concentrate too
much power in a single set of government actors, and they, moreover, may on occasion be
subject to political pressure. The result may well be to produce disparities in the way similarly

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.

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situated people are treated, disparities that our complex, Guidelines-with-district-court-
discretion, system has sought to minimize. The district court's exercise of its sentencing
discretion may provide the only effective way to control and diminish unjustified disparities,
without operating in the blunt fashion of selective prosecution judicial review. It may reduce
improper differences in treatment, without impinging on the executive's obligation to enforce the
law.

Our case law provides support for this approach. For instance, while we have not
required a district court to consider sentencing disparities among co-defendants, we have held
that district courts are permitted to do so. As we explained, it is "appropriate for a district court,
relying on its unique knowledge of the totality of circumstances of a crime and its participants, to
impose a sentence that would better reflect the extent to which the participants in a crime are
similarly (or dissimilarly) situated and tailor the sentences accordingly." Wills, 476 F.3d at 110
(internal emphasis omitted). This, as has been recognized, allows district courts to provide a
check against certain otherwise unbounded prosecutorial decisions, as to what charges to bring
and as to whether to make substantial assistance motions with respect to only some defendants.1

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).

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It is not much of an extension to permit the district courts to exercise analogous supervision over
those decisions as to which prosecutors enjoy the greatest discretion and that result in the greatest
disparities: the decisions on whether to bring any charges at all.

There are, of course, many reasons for prosecutors to fail to bring charges or to bring
lesser charges than they could have, and some of these reasons are clearly irrelevant to the proper
sentence of the person who has been charged and convicted. But other reasons may be relevant
because they may suggest arbitrariness and can lead to abuse-such as the political clout of some
potential defendants as against others. We as appellate judges are ill-suited to distinguish
between relevant and irrelevant reasons in any given case. The same cannot be said, however,
for a district court judge who has presided over a whole trial in which the behavior of uncharged
or undercharged parties was part and parcel of the discussion.

This does not mean that when a district court issues a sentence that it should articulate its
reliance on the prosecution's decision not to charge (or to undercharge) other parties. I am not
sure. While we generally ask a district court to explain the reasons behind its sentence, and
indeed indicated in Cavera that "a district court errs if it fails adequately to explain its chosen
sentence, and must include an explanation for any deviation from the Guidelines range," 550
F.3d at 190 (internal quotations omitted), there are some things that are perhaps best left unsaid
by the district court, even though their potential relevance is apparent on the record.12 A
prosecutor's decision to charge only some parties rather than others may be one of these things.

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).

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The district court might quite reasonably want to avoid impugning the reputation of parties who
have not been indicted or tried, and hence have not had the opportunity to assert innocence in
open court. But that does not mean that a judge who has presided over a full trial may not have
valid reasons to conclude that the failure to charge some potential co-defendants affects, under
the § 3553 factors, the propriety of a sentence.13

I am inclined to think that the district court should not be barred from considering the
relevance of prosecutorial discretion in a particular case, and that our legal system should take
advantage of the district court's unique position to consider a defendant's sentence "in its
complete relevant context," Wills, 476 F.3d at 110 (emphasis added). As appellate courts we
should therefore also keep this issue in mind when we review a district court's sentence, and
recognize it as a further reason to defer to a district court's sentencing judgments. In particular,
though we may properly ask the district court to explain apparent sentencing anomalies among
convicted defendants as both the majority opinion and the partial dissent do here, we should not
forget that there might be even greater disparities between a defendant and other individuals who

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.

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

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were not charged at all.14

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Finally, I would be remiss if I did not follow the majority opinion in observing the fact
that all of the acts for which Stewart was convicted occurred before the attacks of September 11,
2001, an event that illustrates in particularly excruciating fashion that results do matter to us. It
does not diminish the gravity of Stewart's crimes to take judicial notice of their timing, and to
recognize that our attitudes about her conduct have inevitably been influenced by the tragedy of
that day. To suggest otherwise, and to ignore that 9/11 has profoundly influenced our
retrospective assessment of the culpability of certain actions related to terrorists and terrorist
organizations, would be to ignore reality. As the majority opinion says, Stewart herself might
well have viewed her actions differently after 9/11 when the dangerousness of terrorism became
so palpable, so stark, and-most important- so proximate. See Maj. Op. at [119]. We must be
careful then in judging Stewart based on lessons that we learned only after her-very
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serious-crimes were committed.15 In the end, this factor too is part of the district court's
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at [48 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 [48 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).

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, 29 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.

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that "reflect[s] the seriousness of the offense" and "provide[s] just punishment." See 18 U.S.C. §
3553(a)(1)-(2).

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).

No. 06-5015-cr

WALKER, Circuit Judge, concurring in part and dissenting in part:

For two years, defendant Lynne Stewart, through artifice and
deception, and despite sworn commitments to the contrary made to
the government, carried out a criminal plan to transmit
instructions from her imprisoned client, a terrorist leader, to
his jihadist followers in the Middle East, including, ominously,
his withdrawal of support for a fragile cease-fire in Egypt, an
action that effectively sanctioned renewed terrorist attacks and
indiscriminate loss of human life. The district court termed
these deliberate and horrific crimes of terrorism, for which the
Sentencing Guidelines recommends 30 years' imprisonment,
"extraordinarily severe criminal conduct." And yet the district
court imposed a breathtakingly low sentence of 2 1/3 years.
Because the majority fails to recognize that this sentence
trivializes Stewart's extremely serious conduct with a "slap on
the wrist" that is substantively unreasonable, and because the
majority fails to appreciate the full extent of the district
court's numerous procedural errors, I respectfully dissent. 1

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 [127], 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.

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In imposing Stewart's comparably insignificant sentence, the
district judge rejected entirely a major enhancement, established
by the Sentencing Commission under Congress' express command,
that applies generally to the "material support" of terrorism.
Despite finding that Stewart's crime was within the enhancement's
"heartland," Sent'g Tr. 108, the district court found that the
"atypicality" of Stewart's "material support" conduct in
"provi [ding] a co-conspirator to a terrorist conspiracy, " Sent' g
Tr. 113, justified discarding the terrorism component of
Stewart's crime in its § 3553 (a) analysis. But, wholly apart
from the fact that the provision of "personnel" falls squarely
within the definition of "material support" provided in 18 U.S.C.
§ 2339A (b), it trivializes Stewart's conduct to even suggest that
enabling a jailed terrorist leader, with enormous sway over his
jihadist followers, to actively conspire with others in a scheme
to kidnap and kill innocent people somehow mitigates the gravity
of the crime. The district court also based its rejection of an
enhancement for the material support of terrorism on the fact
that Stewart's conduct did not result in actual injuries or
death, even though that fact is rarely, if ever, a mitigating
circumstance, much less a reason to jettison the terrorism
enhancement altogether in its § 3553 (a) analysis.

In addition to failing to make required findings on
obstruction of justice based on evidence of Stewart's double
perjury at trial, as the majority recognizes, Maj. Op. at [122-
124], the district court also all but ignored Stewart's gross

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abuse of the fiduciary trust placed in her by the United States
government, and, in the face of contrary policy statements by the
Sentencing Commission, gave unjustified controlling weight to its
mitigating view of Stewart's age, health, and previous career.
Numerous additional errors attended the radical reduction of
Stewart's sentence from the recommended 30 years to 2 1/3 years.

Section 3553 (a) of Title 18 of the United States Code, which
governed Stewart's sentence, requires that every sentence take
into appropriate account "the nature and circumstances of the
offense [, ] and the history and characteristics of the defendant";
"reflect the seriousness of the offense"; "promote respect for
the law"; and "adequate [ly] deter[]" similar conduct in the
future. 18 U.S.C. § 3553 (a) (1)-(2). The statute also mandates
consideration of "the need to avoid unwarranted sentenc [ing]
disparities." Id. § 3553 (a) (6). Recognition of the full scope
of the district court's procedural errors makes plain that
Stewart's sentence fails to respect these goals and is so
extraordinarily lenient as to manifest an abuse of discretion
resulting in a substantively unreasonable sentence.

The majority appropriately acknowledges the fine reputation
of the district court judge, a point with which I concur. And,
like the majority, I commend the district court's management of
this complex and difficult trial. However, the majority goes on
to suggest, with Judge Calabresi's concurrence being quite
explicit, that because of the district court's reputation, our
review of the Stewart sentencing should be more deferential than

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would normally be the case. This court has never recognized two
classes of judges - those who are so good that their judgment is
beyond reproach, and all the rest. Indeed, no judge on any
federal court, including the Supreme Court, can lay claim to
infallibility. Great respect for a particular judge cannot be a
basis for overlooking what, in my view, amounts to a distortion
of our sentencing laws. For the foregoing reasons, and others
that I will describe, Stewart's sentence must be vacated and she
must be resentenced.

####### I. The Defendants' Exceptionally Serious Criminal Conduct

Sheik Abdel Rahman, Stewart's client, is a dedicated
terrorist leader with a large jihadist following in the Middle
East, known as the "Islamic Group" among other names, Maj. Op. at
[10], and a more discrete following in the United States. See
United States v. Rahman, 189 F.3d 88, 104-05 (2d Cir. 1999) (per
curiam) . Abdel Rahman was locked up in federal prison in
Rochester, Minnesota, to serve a life sentence imposed in 1996,
after he was convicted for both (1) trying to wreak havoc in New
York City by blowing up bridges, tunnels, and buildings, and (2)
attempting to assassinate Egyptian President Hosni Mubarak. See
id. at 148.

For two years, 2000 and 2001, the defendants in this case -
Sattar, another jihadist with direct links back to Abdel Rahman' s
Egyptian followers; Stewart, Abdel Rahman's lawyer; and Yousry,
Stewart's student interpreter - made sure that Abdel Rahman could
continue to communicate with his jihadist cohorts. The

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Department of Justice had employed "Special Administrative
Measures" (SAMs) specifically designed to prevent such
communications while still enabling an imprisoned terrorist to
speak to, and be effectively represented by his attorney.
Compliance with the SAMs system largely depends upon the trust
placed in the attorney. In accordance with the SAMs, Stewart,
repeatedly swore under oath that she would not transmit any non-
legal communications to or from Abdel Rahman. She swore falsely.

Undeterred by the SAMs, Stewart, assisted by Yousry,
executed a scheme of lies and deception against the government to
keep the lines of communication open between Abdel Rahman and
Sattar, and, through Sattar, the Egyptian jihadists. These
communications included a declaration by Abdel Rahman that he was
withdrawing his support for a tenuous cease-fire that, for some
time, had aimed at curbing violent attacks by Abdel Rahman's
followers upon targets in Egypt.2 Stewart even went so far as to
deliver this statement to an Arab journalist on Abdel Rahman' s
behalf, which resulted in the message's wide dissemination
through the media in the Middle East.

The federal crimes committed by the defendants are numerous.
All three conspired to defraud the United States, in violation of
18 U.S.C. § 371. Rahman, Sattar, and other jihadists conspired
to kill and to kidnap persons in a foreign country, in violation

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 Al.

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of 18 U.S.C. § 956 (a) (1), (a) (2) (A), and solicited crimes of
violence, in violation of 18 U.S.C. § 373. Stewart and Yousry,
both individually and in conspiracy, provided and concealed
material support to terrorist activity - namely Rahman's and
Sattar's conspiracy to kill and to kidnap - in violation of 18
U.S.C. §§ 371, 2339A. Additionally, Stewart made multiple false
statements to the Department of Justice and to the Bureau of
Prisons, in violation of 18 U.S.C. § 1001. Such behavior
constitutes extraordinarily serious, indeed horrendous, criminal
conduct; that there was no evidence that Stewart's conduct
ultimately resulted in death and injury to innocent people was
due to law enforcement's diligence, and not to any lack of effort
by the defendants or their confederates.

For such crimes, the advisory Sentencing Guidelines
effective on November 1, 2000, applicable here, provided for
lengthy sentences: life imprisonment for Sattar, 360 months'
imprisonment for Stewart, and 78 to 97 months' imprisonment for
Yousry. A Guidelines recommendation, of course, is just that - a
recommendation - and a district judge has considerable discretion
to sentence outside of the Guidelines. See Gall v. United
States, 128 S. Ct. 586, 594 (2007). The district court sentenced
the defendants well below the recommended Guidelines ranges,
lowering Sattar's sentence from a recommended life term to 24
years, Yousry's sentence from 78 months to 20 months, and
Stewart's sentence from 360 months to a mere 28 months.

What is immediately striking about Stewart's sentence is not

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simply its extraordinary 92 percent reduction from the
recommended Guidelines range, 3 but also the fact that the actual
term of incarceration imposed - 2 1/3 years - is unprecedented in
convictions for material support of terrorism.4 The Supreme
Court has made clear that the Guidelines provide "the starting
point and the initial benchmark" for sentencing, and that

3
In Gall, the Supreme Court instructed appellate courts not to use, as
a general matter, "the percentage of a departure [from the Guidelines] as the
standard for determining the strength of the justifications required for a
specific sentence." 128 S. Ct. at 595. This proscription recognizes that
percentages cannot speak reliably across the Guidelines ranges. See id. ("The
mathematical approach also suffers from infirmities of application."). For
low Guidelines ranges, even small sentencing variances can yield large
percentages, unfairly exaggerating a district court's action in imposing a
non-Guidelines sentence. Id. For high Guidelines ranges, major variances can
yield relatively modest percentages, inaccurately representing the
significance of the district court's action. That percentages cannot always

accurately measure a variance's significance does not, however, mean that
percentages are always irrelevant. When, as here, a variance from the
recommended Guidelines range is extraordinarily large both in terms of the
actual reduction of time to be served (a 232-month reduction) and the
percentage of the reduction (92 percent), these facts taken together strongly
signal the need for careful review of the justifications advanced for the
challenged sentence. See id. at 597 (observing that appellate courts may
reasonably expect a "major departure" from the Guidelines sentencing range to
be supported "by a more significant justification than a minor one") .

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

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

######## II. Relevant Legal Standards

Our review proceeds under a "deferential abuse-of-discretion
standard," Gall, 128 S. Ct. at 591, and "a district court's
decision to vary from the Guidelines 'may attract greatest
respect when the sentencing judge finds a particular case [to be]
outside the "heartland" to which the Commission intends
individual Guidelines to apply,'" Cavera, 550 F.3d at 192
(quoting Kimbrough v. United States, 128 S. Ct. 558, 574-75
(2007) ) . However, "closer review may be in order when the
sentencing judge varies from the Guidelines based solely on the
judge's view that the Guidelines range fails properly to reflect
§ 3553 (a) considerations even in a mine-run case." Kimbrough,
128 S. Ct. at 575 (internal quotation marks omitted) ; accord
Cavera, 550 F.3d at 192. The basic contours of our role are as
follows.

To evaluate procedural reasonableness, we must ensure that

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the district court, in imposing a sentence, followed the
procedural steps prescribed by law. Procedural reasonableness
"requires that we be confident that the sentence resulted from
the district court's considered judgment as to what was necessary
to address the various, often conflicting, purposes of
sentencing." Cavera, 550 F.3d at 189-90. Thus, a district court
commits procedural error when it fails to calculate or
incorrectly calculates the Guidelines range, treats the
Guidelines as mandatory, neglects to consider the factors set
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;

(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-

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erroneous factual finding. See id. at 190. To avoid procedural
error, a district court must also "adequately . . . explain its
chosen sentence," including the reasons that the sentence should
be different (in this case, extraordinarily different) from that
recommended by the Guidelines, id., in order "to allow for
meaningful appellate review and to promote the perception of fair
sentencing," Gall, 128 S. Ct. at 597.

We do not categorically proscribe any factor "concerning the
[defendant's] background, character, and conduct," with the
exception of invidious factors. 18 U.S.C. § 3661; see also
Cavera, 550 F.3d at 190-91; United States v. Kaba, 480 F.3d 152,
156-57 (2d Cir. 2007). Still, while a district court may "take
into account any information known to it," United States v.
Concepcion, 983 F.2d. 369, 387 (2d Cir. 1992), it does not possess
"a blank check to impose whatever sentences suit [its] fancy,"
Cavera, 550 F.3d at 191 (quoting United States v. Jones, 531 F.3d
163, 174 (2d Cir. 2008) ). And a district court, despite its
discretion, cannot ignore any of the § 3553 (a) factors; it must
consider them all, Gall, 128 S. Ct. at 596, including the
relevant Guidelines range and "any pertinent Sentencing
Commission policy statement," Cavera, 550 F.3d at 188-89. See
also 18 U.S.C. § 3553 (a) (4) - (5). As we stated in United States v.

(A) 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.

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As long as the judge is aware of both the statutory requirements and
the sentencing range or ranges that are arguably applicable, and
nothing in the record indicates misunderstanding about such
materials or misperception about their relevance, we will accept
that the requisite consideration [of the $ 3553 (a) factors] has
occurred.

443 F.3d 19, 29-30 (2d Cir. 2006) (quoting United States v.
Fleming, 397 F.3d 95, 100 (2d Cir. 2005) (emphasis from Fernandez
omitted) ) . However, if the district court has "ignored or
slighted a factor that Congress has deemed pertinent" in §
3553 (a), it has abused its discretion. United States v. Taylor,
487 U.S. 326, 337 (1988) ; Gall, 128 S. Ct. at 607 (Alito, J.,
dissenting) ; see also id. at 596 (majority opinion) (directing
district courts to "consider all of the § 3553 (a) factors"
(emphasis added) ) .

In performing substantive reasonableness review, we must
determine whether the district court's sentence is "located
within the range of permissible decisions." Cavera, 550 F.3d at
191 (internal quotation marks omitted). "[W]e take into account
the totality of the circumstances, giving due deference to the
sentencing judge's exercise of discretion, and bearing in mind
the institutional advantages of district courts." Id. at 190.
But we must accept that such discretion is not boundless. "In
sentencing, as in other areas, district judges at times make
mistakes that are substantive. . . . Circuit courts exist to
correct such mistakes when they occur." Rita v. United
States, 551 U.S. 338, 354 (2007). Because the § 3553 (a) factors
are to "guide sentencing," the factors also "guide appellate

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courts
in determining whether a sentence is unreasonable."
United States v. Booker, 543 U.S. 220, 261 (2005). And because
"it is fair to assume that [the Guidelines], insofar as
practicable, reflect a rough approximation of sentences that
might achieve § 3553 (a)'s objectives," Rita, 551 U.S. at 350, our
judgment of a sentence's substantive reasonableness must be
informed by "the extent of any variance from the Guidelines
range, " Gall, 128 S. Ct. at 597.

In light of a district court's wide discretion in
sentencing, we do not "presume that a non-Guidelines sentence is
unreasonable." Cavera, 550 F.3d at 190. But when a district
judge chooses to step away from the Guidelines, we "must consider
the extent of the deviation and ensure that the justification is
sufficiently compelling to support the degree of the variance."
Gall, 128 S. Ct. at 597; accord Cavera, 550 F.3d at 190. There
is no "rigid mathematical formula that uses the percentage of a
departure as the standard for determining the strength of the
justifications required for a specific sentence." Gall, 128 S.
Ct. at. 595. Rather, our focus on the degree of deviation is
derived from the "uncontroversial" proposition "that a major
departure should be supported by a more significant justification
than a minor one." Id. at 597. Whatever the justification, its
persuasive power depends in large part on the quality of its
reasoning. Accordingly, in order to determine whether the
sentencing court acted reasonably, we must examine how it reached
its conclusions, and determine how persuasive its stated reasons

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are in supporting its exercise of discretion. See id. at 600-02.
If the district judge's reasoning is sound, "we will not second
guess the weight (or lack thereof) that the judge accorded to a
given [§ 3553 (a) ] factor
as long as the sentence
ultimately imposed is reasonable in light of all the
circumstances presented." Fernandez, 443 F.3d at 32, 34
(emphasis added) . We have noted, however, that "unjustified
reliance upon any one factor is a symptom of an unreasonable
sentence," United States v. Rattoballi, 452 F.3d 127, 137 (2d
Cir. 2006), but only a symptom: We must reach our decision by
examining the reasoning of the district court in light of the
totality of the circumstances, with due deference to the district
court's judgment.

######### III. Stewart's Sentence

########## A. The District Court's Findings and Conclusions

In sentencing Stewart, the district court began by
calculating her sentencing range under the Guidelines, and found
it to be 360 months, the statutory maximum.6 Sent'g Tr. 112.
The district court's Guidelines calculation was clearly
appropriate. The majority speculates that the district court
might not have fully applied the terrorism enhancement in
calculating Stewart's range, see Maj. Op. at [125 n.37]; this
speculation is belied by the record and is therefore unwarranted,
see Sent'g Tr. 112, 114. Over Stewart's objection, the district

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' imprisonment.

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court found that the Guidelines terrorism enhancement, U.S.S.G. §
3A1.4 (2000), applied because she had committed a "federal crime
of terrorism." Sent'g Tr. 107-08. In light of the "ample
evidence" showing that Stewart's "actions were calculated to
affect the conduct of the Egyptian government through
intimidation and coercion," the district judge held that her
conduct "cannot be found to be outside the heartland of the
enhancement." Sent'g Tr. 108. The district court acknowledged
Stewart's arguments that the enhancement did not apply, and that
its effect on her Criminal History Category overstated the
seriousness of her past conduct and the likelihood that she would
commit further crimes. Sent'g Tr. 108-09. The district court,
however, did not waver from its "heartland" determination, and
chose to defer consideration of Stewart's non-application and
overstatement claims to its § 3553 (a) analysis, instead of
determining whether they warranted departures within the
Guidelines' scheme. Sent'g Tr. 109.

The district court also declined to determine whether
Stewart's conduct warranted a Guidelines enhancement for her
potential obstruction of justice under U.S.S.G. § 3C1.1 (2000) .
The government had urged this enhancement based upon Stewart's
alleged double perjury at trial. Sent'g Tr. 111. The district
court found "evidence to indicat [e] that [Stewart's] statements
were false." Sent'g Tr. 111. The court nonetheless chose not to
consider the enhancement's applicability, on the basis that the
Guidelines, because of the terrorism enhancement, already

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provided for the statutory maximum. Sent'g Tr. 111. The
district court also noted that it believed a non-Guidelines
sentence would be "most consistent with the [§ 3553 (a) ] factors."
Sent'g Tr. 111-12.

Stewart sought several downward departures under the
Guidelines. First, she argued that she deserved a "lesser harms"
departure pursuant to U.S.S.G. § 5K2.11 (2000) because she
committed her crime in order to avoid a perceived greater harm.7
Rejecting this argument, the district court found that "the
circumstances of this case do not diminish society's interest in
punishing the conduct at issue," and that " [t]his is not a case
where the interest in punishment or deterrence is reduced."

Sent'g Tr. 109-10. The district court also rejected Stewart's
request for a downward departure under U.S.S.G. § 5K2.20 (2000),
which applies to "aberrant behavior." The district court refused
to grant this departure because Stewart's conduct "was committed
over an extended period of time, involved repeated acts of
deception, and involve[d] significant planning." Sent'g Tr. 110.

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 she 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.

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Finally, the district court stated that it would take into
account Stewart's requested departure for "extraordinary medical
conditions," pursuant to U. S.S.G. § 5H1.4, when making its §
3553 (a) determination.

Having found that the Guidelines called for Stewart to
receive the statutory maximum of 360 months, the district court
proceeded to its § 3553 (a) analysis. The district court cited
what it believed to be "numerous factors that argue in favor of a
very substantial downward variance." Sent'g Tr. 113. First, the
district court noted that "this is an atypical case for the
terrorism enhancement," because "there are few, if any, cases
where the thrust of the violation was the provision of a co-
conspirator to a terrorist conspiracy." Sent'g Tr. 113.

"Moreover," the district court explained, "there is no evidence
that any victim was in fact harmed as a result of the offense as
charged
"
Sent'g Tr. 113. The district court also found
the terrorism enhancement's impact on Stewart's Criminal History
Category to be "dramatically unreasonable." Sent'g Tr. 113.

The district court thus concluded that application of the
full terrorism enhancement, "while correct under the guidelines,
would result in an unreasonable result in this atypical case and
produce a guideline range about quadruple the range without that
enhancement." Sent'g Tr. 114. Accordingly, the district court
proceeded to consider Stewart's sentence as if there was no
terrorism component to her material support. Although the
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the district court, in its § 3553 analysis, effectively set aside
the enhancement, sentencing Stewart as if the Guidelines ranges
were 78 to 97 months' imprisonment without the government's
requested obstruction enhancement, and 97 to 121 months'
imprisonment with that enhancement. Sent'g Tr. 114. The
district court then stated that these ranges did not "tak[e] into
account the extraordinary personal characteristics of the
defendant [, ] which also argue strongly in favor of a substantial
downward variance." Sent'g Tr. 114.

Noting that "[t]he personal characteristics of the defendant
are intertwined with several of the [§ 3553 (a) ] factors," Sent'g
Tr. 115, the district court then discussed at length Stewart's
age, health, and career. The district court described Stewart's
career of "represent [ing] the poor, the disadvantaged [, ] and the
unpopular," and concluded that it was "no exaggeration to say
that Ms. Stewart performed a public service not only to her
clients but to the nation." Sent'g Tr. 115-16. Although
acknowledging that, under the Guidelines, "prior good works are
not ordinarily relevant" to a defendant's sentence, the district
court noted that even the Guidelines permitted "extraordinary
contributions [to] take a defendant outside the Guidelines
ra [n]ge." Sent'g Tr. 116. Accordingly, the district court held
that Stewart's past work warranted a "substantial downward
variance." Sent'g Tr. 116.

The district court then explained that Stewart's conviction
would likely prevent her from ever practicing law again. The

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court found that this "is itself a punishment," and "means that
the occasion for offenses will be removed and that a lengthy
sentence of imprisonment would be an excessive one . . . for
deterrence and protection of the public." Sent'g Tr. 116-17.

The district court noted that Stewart was 67 years old,
making "imprisonment . . . particularly difficult on her."
Sent'g Tr. 117. And the court found Stewart's history of
overcoming cancer relevant because she had a "statistically
significant chance of recurrence" and "suffers from other medical
conditions including sleep apnea." Sent'g Tr. 117. The district
court acknowledged that "[m]edical care can be delivered while in
prison," but found it "clear that prison will be particularly
difficult for this defendant." Sent'g Tr. 117.

Despite noting that "age and physical condition are
discouraged factors under the guidelines," the district court
concluded that, "[b]ecause imprisonment will be particularly hard
on the defendant, a lesser sentence than otherwise called for by
the advisory guidelines would be sufficient to accomplish the
goals of Section 3553 (a) (2)." Sent'g Tr. 117-18. But the
district court reiterated that there still was "an irreduceable
core of extraordinarily severe criminal conduct." Sent'g Tr.
118. The court "point [ed] out that the offenses of conviction
were serious, involved dishonesty and breach of trust, and had
potentially lethal consequences
Sent'g Tr. 119.
However, the district. court felt that "the seriousness of the
offense d[id] not wipe out the three decades of service and the

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other characteristics of the defendant and the particular effects
of the sentence on this defendant." Sent'g Tr. 119.
Accordingly, "[t]aking all of the [§ 3553 (a) ] factors into
account, " the district court sentenced Stewart to 28 months'
imprisonment. Sent'g Tr. 120.

######## B. The District Court's Procedural and Analytical Errors

The majority raises four issues concerning Stewart's
sentence: (1) It does not understand why Stewart's abuse of her
position as a lawyer did not warrant a higher sentence, Maj. Op.
at [120-121]; (2) it does not understand why Stewart's sentence
was only eight months longer than Yousry's, despite her
significantly more egregious conduct, Maj. Op. at [121-122]; (3)
it finds that the district court procedurally erred by ignoring
Stewart's potential perjury, which was relevant to her sentence
under § 3553 (a), Maj. Op. at [122-124]; and (4) without finding
error, it notes the district court's failure to include
consideration of whether support of terrorism is an aggravating
factor and suggests that the district court reconsider whether
Stewart's sentence was appropriate in view of the offense for
which she was convicted; Maj. Op. at [124-126]. Accordingly, the
majority remands for resentencing, directing the district court
to address the perjury issue, consider whether Stewart's conduct
as a lawyer triggers the abuse-of-trust enhancement under
U.S. S.G. § 3B1.3, reconsider the extent to which Stewart's status
as a lawyer affects the appropriate sentence, and examine the
overall appropriateness of Stewart's sentence, taking into

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account the terrorism enhancement, in light of the magnitude of
her offense. Maj. Op. at [127-128] .

Although I share the majority's four concerns and its
conclusion that resentencing is required, the district court made
several substantial errors that the majority refuses to identify
as legal errors. Our error correcting function requires us to
specify these errors now, when they are evident to the court, to
prevent their repetition on remand and in other cases. Notably,
because the district court's stated reasons for effectively
removing altogether the terrorism object of Stewart's material
support in its § 3553 (a) (2) (A) analysis cannot, in fact, mitigate
the seriousness of Stewart's crime, I identify procedural error
in the district court's application of 18 U.S.C. § 3553 (a) (2) (A) .
This grave error in assessing the seriousness of Stewart's crime,
moreover, was compounded by the district court's failure to
account for two aggravating factors plainly relevant under the
Guidelines: Stewart's perjury, and her persistent and blatant
abuse of a position of trust to commit her crime. See 18 U.S.C.
$ 3553 (a) (4). While the majority acknowledges these last two
procedural errors, its failure to explicitly recognize the error
that they compound minimizes the magnitude of the district
court's error in identifying the seriousness of Stewart's
criminal conduct - which, in turn, contributed to other errors.

Without a reasonable assessment of the seriousness of
Stewart's crime, the district court could not reliably determine
the sentence necessary to afford adequate general and specific

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deterrence for crimes of material support of terrorism. See 18
U.S.C. § 3553 (a) (2) (B). The district court's error in assessing
the seriousness of Stewart's crime further precluded a reliable
determination of the sentence necessary to avoid unwarranted
disparities with similarly situated criminals. See 18 U.S.C. §
3553 (a) (6) .

Moreover, the district court's error in assessing the
seriousness of Stewart's crime prompted it to accord Stewart's
age, health, and career mitigating weight that they cannot
reasonably bear. The totality of these procedural errors, all
originating in a disturbing misunderstanding of the seriousness
of Stewart's conduct, contributed to a sentence that so
trivializes the terrorism crimes of conviction as to present a
rare occurrence in this court: a sentence that cannot be deemed
to fall within the wide range of substantively reasonable choices
available to a sentencing judge. Cf. Jones, 531 F.3d at 174.

1\. Assessing the Seriousness of Stewart's Crime as Required

######### by $ 3553 (a) (2) (A)

## a. The Terrorism Enhancement

In 1994, Congress expressly mandated that the Sentencing
Commission provide for a terrorism enhancement to ensure that
crimes of terrorism were met with a punishment that reflected
their extraordinary seriousness. See Violent Crime Control and
Law Enforcement Act of 1994, Pub. L. 103-322, § 120004, 108 Stat.
1796, 2022. The Commission accordingly created an enhancement
that operates both vertically, increasing the offense level to

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(b) In each such case, the defendant's criminal history
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indicate the seriousness of the crime, and horizontally
increasing the defendant's Criminal History Category to reflect
the need for deterrence, regardless of the defendant's prior
record. See U.S.S.G. § 3A1.4 (2000) .8 As the majority
acknowledges, the Sentencing Commission "unambiguously cast a
broad [] net" when drafting the terrorism enhancement. Maj. Op.
at [95] (quoting United States v. Mandhai, 375 F.3d 1243, 1247
(11th Cir. 2004) ). The import of this enhancement "could not be
clearer": It reflects Congress' and the Commission's policy
judgment "that an act of terrorism represents a particularly
grave threat because of the dangerousness of the crime and the
difficulty of deterring and rehabilitating the criminal, and thus
that terrorists and their supporters should be incapacitated for
a longer period of time." United States v. Meskini, 319 F.3d 88,
91-92 (2d Cir. 2003) (emphasis added). Under the applicable
Guidelines, the enhancement increases the Guidelines sentence for
a terrorism crime to a minimum of 210 months or 17 1/2 years;
particularly serious crimes, such as Stewart's, have even higher
sentences after the enhancement is applied. 9

(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.

U.S.S.G. § 3A1.4 (2000) .

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

Despite finding that Stewart's crime fell within the
terrorism enhancement's "heartland," the district court, in its §
3553 (a) analysis, sentenced Stewart as if there was no terrorism
component to her material support - and then proceeded to reduce
her sentence considerably further for additional reasons. The
district court effectively sentenced Stewart as though she had
committed no "federal crime of terrorism," U.S.S.G. § 3A1.4
(2000), even though the jury and the district court itself had
expressly found to the contrary. In an effort to avoid
addressing this issue today, the majority suggests that the
record could support the conclusion that the district court, in
fact, considered the terrorism aspect of Stewart's crime as an
aggravating factor and thus did not commit error by failing to
factor the terrorism component of Stewart's crime into its §
3553 (a) analysis. This suggestion has no basis in the record,
and the majority does not even begin to explain how the terrorism
component could have possibly been an aggravating factor in a
sentence that radically reduced Stewart's sentence from the
recommended 30 years to a mere 2 1/3 years.

Whatever the merits of the district court's disregard of the
enhancement on the basis that it overstated Stewart's criminal
history, the district court's complete elimination of the effect
of the enhancement's vertical component in assessing the
seriousness of Stewart's crime cannot withstand scrutiny in light
of the district court's obligation to impose a sentence
sufficient to reflect the seriousness of the crime of conviction.

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The district court offered two rationales for ignoring the
terrorism enhancement's vertical component when determining
Stewart's sentence under § 3553 (a): the "atypical" nature of
Stewart's crime, and the lack of evidence of harm to victims.
Neither rationale is sustainable in this case.

Because the district court offered unsound rationales for
mitigating the seriousness of the terrorism aspect of Stewart's
crime, effectively sentencing Stewart as if there was no
terrorism component to her crime whatsoever, I find error. The
error is evident in light of the values inherent in the
Guidelines, which provide a very strong signal that crimes in
furtherance of terrorism objectives are to be considered
exceptionally serious, see U.S.S.G. § 3A1.4 (providing for a 12
offense level increase with a minimum offense level of 32 and
minimum Criminal History Category of VI). Jettisoning the
terrorism component of Stewart's crime in its § 3553 (a) analysis
is particularly inexplicable when considered against the district
court's recognition that Stewart's conduct fell within the
enhancement's "heartland," and the fact that terrorism was a
required element of the crime for which Stewart was convicted.

Offering its first rationale, the district court stated that
Stewart's conviction was "an atypical case for the terrorism
enhancement" despite concluding minutes earlier that Stewart's
conduct "cannot be found to be outside the heartland of the
enhancement." Sent'g Tr. 108, 113. The "atypical" heartland
conduct, the district court added, was "the provision of a co-

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conspirator to a terrorist conspiracy." Sent'g Tr. 113. The
district court did not explain this conclusion, nor can the
record support a reasonable explanation. At the outset, I
question the atypicality of this conduct as a mitigating factor.
Congress itself has made plain that giving material support,
which is a crime of terrorism under the Guidelines, can be
satisfied entirely by the provision of "personnel." See 18
U.S.C. § 2339A (b) (including the provision of personnel in the
definition of "material support"). Indeed, it is absurd and
therefore necessarily unreasonable to even suggest that enabling
an incarcerated terrorist leader with enormous influence to
actively conspire with others in a scheme to kidnap and kill
innocent persons somehow mitigates the seriousness of the crime.

Sheik Abdel Rahman was no ordinary "co-conspirator." He was
the head of the snake, a spiritual leader of a violent terrorist
group whose words carried the force of a holy writ among his
followers, and a man serving a life term for conspiring to bring
deadly chaos to New York City. See Rahman, 189 F.3d at 103-11.
After Abdel Rahman's influence had been sapped by the
incarceration and isolation attending his lawful conviction,
Stewart's crime specifically targeted undoing this protection by
successfully enabling Abdel Rahman, as the Islamic Group's
spiritual leader, to communicate with his followers and to
support the renewal of bloodshed. Abdel Rahman's unique stature
in the terrorist world surely renders Stewart's crime "atypical, "
but this atypicality is an aggravating factor, not a mitigating

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one, thereby making Stewart more culpable than a defendant
engaged in more "typical" material support, such as providing
money or a cache of firearms to a terrorist group.

Although material support of terrorism may cover a
"multitude of sins," as Judge Calabresi's concurrence states, Op.
of J. Calabresi at [3], this observation does no work in
justifying a district court's complete disregard of the terrorism
enhancement. Each "sin" has a critical feature in common; it
supports terrorism. And Congress has sent a clear signal that
this feature alone warrants enhancement of punishment. See
U.S. S.G. § 3A1.4 (providing for a 12 offense level increase with
a minimum offense level of 32 and minimum Criminal History
Category of VI). That signal was not heeded in this case. The
procedural concern with the district court's sentence is not with
where Stewart's conduct was placed on the terrorism spectrum: it
is with whether that conduct was placed on the spectrum at all.
Removing Stewart from the spectrum on account of the nature of
her "sins" is particularly egregious given that Stewart's conduct
supported Abdel Rahman, a terrorist at the highest level.

Beyond erroneously finding mitigating atypicality in
"provi [ding] a co-conspirator to a terrorist conspiracy," Sent'g
Tr. 113, the district judge offered no further explanation of why
Stewart's "atypical" conduct should lessen Stewart's culpability
or justify ignoring the terrorism object of Stewart's material
support as an aggravating factor in its § 3553 (a) analysis,
particularly in view of its "heartland" finding. As a result, we

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are left only with the district judge's bare assertion of
atypicality, which cannot reasonably support the complete
rejection of the terrorism enhancement. See Cavera, 550 F.3d at
193.

The district court's second rationale for giving no effect
to the terrorism component of Stewart's material support - the
absence of evidence that Stewart's terrorism crimes resulted in
actual harm - is similarly flawed.1º Several points must be made
before explaining why this reasoning amounted to procedural
error. First, the absence of harm is in no sense attributable to
Stewart. Alaa Abdul Raziq Atia, the leader of the violent
faction of the Islamic group, including Abdel Rahman, was located
and killed by Egyptian authorities after the cease-fire was
lifted but before he could act upon it. Second, the district
court did not simply consider the absence of harm as a factor to
lessen the effect of the terrorism enhancement; it used that
fortuity to completely eliminate the effect of the terrorism
enhancement in its § 3553 (a) consideration, so that Stewart, in
substance, was punished as if she had committed no crime of
terrorism at all. Third, the district court provided no reason,
much less a persuasive one, for why the absence of death or
injury should have such a steep mitigating effect in this case.

I take issue with the majority's failure to identify as
procedural error the district court's deeply flawed reliance on

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.

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the fortuity that Stewart's crime did not have the horrific
consequences that she and Abdel Rahman intended. In doing so,
the majority fails to appreciate the unique nature of terrorism
support crimes, and the enhancement punishment they warrant as
envisioned by Congress. Judge Calabresi's concurrence mistakenly
equates such crimes to ordinary crimes and attempts, and
erroneously permits the district court to eliminate the
enhancement altogether primarily because the intended destruction
of innocent life did not come to pass. Op. of J. Calabresi at
[6].

Congress and the Sentencing Commission plainly intended for
the punishment of crimes of terrorism to be significantly
enhanced without regard to whether, due to events beyond the
defendant's control, the defendant's conduct failed to achieve
its intended deadly consequences. See United States v. Abu Ali,
528 F.3d 210, 264-65 (4th Cir. 2008). Such intent is plain from
the many criminal statutes and Guidelines unrelated to terrorism
that specifically account for the level or absence of injury,
while the material support statute and terrorism enhancement do
not.11 Moreover, Congress amended Stewart's statute of
conviction in 2001 so that causing death increased the statutory

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) .

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maximum from 15 years to life imprisonment.12 Contrary to the
suggestion in Judge Calabresi's concurrence that the achievement
of harm, like a two-way elevator, cannot be an aggravating factor
unless the absence of such harm is a mitigating factor, Op. of J.
Calabresi at [9], Congress has been unmistakably clear that, as a
general matter, the achievement of actual harm may aggravate the
seriousness of a terrorism crime but that the absence of proven
harm does not mitigate such a crime. As such, the district
court's decision to place substantial mitigating weight upon the
absence of harm is thus so far contrary to the policy choices of
Congress and the Commission that it cannot be deemed reasonable
under § 3553 (a) (1) (A) without persuasive explanation. See
Kimbrough v. United States, 128 S. Ct. 558, 575 (2007) .

Unremarkably, courts routinely, and unflinchingly, apply the
terrorism enhancement in the absence of proven harm.13 Here, the
Egyptian police caught and killed Alaa Abdul Raziq Atia, a

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.q., 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
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 component of the defendant's
crime 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.

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violent co-conspirator, after Abdel Rahman and Stewart withdrew
Rahman's support for the cease-fire, but before Atia could act on
that message. This fortuity likely prevented Stewart's crime
from harming victims, but "[f]ortuity has no bearing on
culpability," United States v. Mitchell, 178 F.3d 904, 910 (7th
Cir. 1999), nor does it mitigate to any degree the seriousness of
Stewart's conduct. 14 Abdel Rahman himself was appropriately
given a life sentence even though his plans to assassinate
President Hosni Mubarak and to blow up bridges, tunnels, and
buildings in New York City were frustrated. See Rahman, 189 F.3d
at 124-126. There is no reason why fortuity should have enabled
Stewart, Rahman's supporter, enabler, and co-conspirator, to be
sentenced as if no terrorism crimes had ever occurred.

In suggesting that the district court's heavy reliance on
the lack of proven harm was reasonable, neither the majority's
opinion nor Judge Calabresi's concurrence finds support in the
case law, and I have found none. Judge Calabresi is reduced to
observing that attempted crimes are sometimes treated differently
from completed crimes, even when only fortuity separates the two.
Op. of J. Calabresi at [5-6]. But how the law treats attempts is
besides the point. As the majority itself recognizes, material
support of terrorism is "a substantive, not inchoate, offense."

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. ") .

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Maj. Op. at [51]. "This is an independent crime, complete in its
most serious form when the [material support] is complete and
nothing is added to its criminality by success or consummation,
as would be the case, say, of attempted murder." Spies v. United
States, 317 U.S. 492, 498-99 (1943).

The Fourth Circuit recently agreed with my position,
vacating a sentence of 30 years' imprisonment because the
district court impermissibly reduced, on the basis of lack of
harm, the sentence of a defendant, as here, convicted of
conspiracy to provide material support. Abu Ali, 528 F.3d at
264-65. It reasoned that "[t]o deviate on the basis of
unrealized harm is to require an act of completion for an offense
that clearly contemplates incomplete conduct. By definition,
conspiracy offenses do not require that all objects of the
conspiracy be accomplished. The Guidelines appropriately
recognize this fact: while they normally afford a three-level
decrease for non-specific offense conspiracies that were not on
the verge of completion, they specifically exclude from this
decrease any conspiracies that involve or promote 'a federal
crime of terrorism.'" Id. at (citing U.S.S.G. § 2X1.1). I
completely agree with this statutory conclusion. As the Fourth
Circuit aptly stated, we are not relegated to "wait [ing] until
there are victims of terrorist attacks to fully enforce the
nation's criminal laws against terrorism. " Id.

Stewart completed her crime as Congress chose to define it,
and the Sentencing Commission, in drafting the terrorism

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enhancement, elected not to mitigate its seriousness by rewarding
a defendant whose crime did not ultimately result in death or
serious injury with a reduced sentencing range. It is for this
reason that lack of success cannot normally be a mitigating
factor even though achievement of harm may be an aggravating
factor. Permitting a district judge to require success in
harming innocents before he will consider the terrorism component
of a crime, particularly in a "heartland" case, is to permit that
judge to disregard the fact that material support is itself a
fully completed crime.

The majority states that "[f]ortuitous events are not
categorically irrelevant to the determination of a just
punishment nor is their consideration necessarily inappropriate."
Maj. Op. at [100]. As a general matter, of course, I agree. In
addition, I do not mean to suggest that there can never be a
terrorism case in which absence of harm might be an appropriate
consideration. Rather, I am suggesting that there is a very
broad heartland of cases in which it should not be considered,
and further that in this heartland, as here, it is error to use
lack of harm as a primary reason for rejecting the terrorism
component of a material support conviction. If, for example, an
incompetent terrorist satisfies the enhancement by putting a
small amount of arsenic into a reservoir for New York's drinking
water with every intention of killing thousands, but without
understanding that the quantity is insufficient to cause harm,
the complete absence of any practical possibility that the plot

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could cause harm may well be relevant. But, that is far from the
instant case, in which Stewart's actions were designed to
embolden Rahman's followers to resume a murderous jihad against
scores of innocent individuals in Egypt and elsewhere. In this
case, it was unreasonable for the district court to place any
weight on the fortuitous and attenuated events that saved the
potential victims of Stewart's crime, much less to use it to wipe
out the terrorism component of Stewart's crime in its § 3553 (a)
analysis, in light of the values signaled by the Guidelines
terrorism enhancement.

Judge Calabresi's attempt to defend the district court's
analysis, by offering a hypothetical comparing the punishment of
a terrorist who succeeds in causing harm with the punishment of
one who does not misses the mark. See Op. of J. Calabresi at
[9]. The question at issue is not whether the amount of harm can
never be a factor in sentencing. It is whether the terrorist who
attempts to detonate a bomb in a public place, with the intent of
killing many innocent Americans, should be able to escape the
terrorism enhancement altogether simply because his plan happens
to fail or be foiled by authorities. The answer, as the
Sentencing Commission has made clear, is no. A more persuasive
reason than the mere absence of injury must be provided by the
district judge who uses that factor to eliminate entirely the
effect of the terrorism enhancement. To permit a judge to
completely ignore the terrorism component of a material support
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not succeed, without further explanation as to why that case is
sui generis, is to overlook the reality that the objective of
terrorism is to kill large numbers of innocent people and that
maximum deterrence needs to be achieved irrespective of success.
See Abu Ali, 528 F.3d at 264-65.

Actual harm is a flawed metric when determining culpability
in material support prosecutions. Precisely because of the
devastating consequences at stake, it is, and should be, the
focus of enforcement authorities to make every effort to prevent
those consequences before they occur. When enforcement
authorities are successful, it is to their great credit and their
efforts should in no sense lessen the deterrent effect of
punishment by conferring a sentencing benefit on those whose
efforts were thwarted. Indeed, the House Report accompanying the
Comprehensive Antiterrorism Act of 1995, which criminalized the
material support of terrorism, explained that one of the
legislation's primary goals was to "enhance [law enforcement's]
capability of thwarting, frustrating, and preventing terrorist
acts before they result in death and destruction." H.R. Rep. No.
104-383, at 42 (1995) (emphasis added) .

I fully recognize that district judges must develop ways of
distinguishing whether and why one form of material support is
more or less reprehensible than another, given the broad range of
conduct that the material support statute criminalizes, see 18
U.S.C. § 2339A. However, it makes little sense to have the
presence or absence of resultant harm to victims be a factor in

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that determination. Cf. United States v. Whiteskunk, 162 F. 3d
1244, 1251 (10th Cir. 1998) (finding it "unfair not to recognize
and accommodate th[e] varying spectrum of culpability" when
sentencing for a "broad category of conduct" (emphasis added) ) .
Because material support providers often have been, and hopefully
will continue to be, apprehended before the crimes that they
foster come to fruition, the lack of physical injury is more
likely to be the norm than the exception.

Accordingly, the lack of injury here was not a fact of
"critical relevance . . . distinguish [ing]" Stewart's conduct
"not only from that of all [her] codefendants, but from the vast
majority of defendants convicted of conspiracy in federal court."
Gall, 128 S.Ct. at 600. Giving the absence of harm mitigating
significance thus not only fails to recognize the extreme
seriousness of such crimes even without achievement of actual
harm, it undermines one of § 3553 (a)'s express goals:
eliminating sentencing disparities. See 18 U.S.C. § 3553 (a) (6) ;
United States v. Simpson, 538 F.3d 459, 464 (6th Cir. 2008)
(noting that focusing on "the defendant's culpability" instead of
fortuity when sentencing "prevents arbitrary disparities"
(emphasis added) ). The happenstance lack of devastating injury
implicit in terrorism crimes generally and Stewart's in
particular simply cannot "bear the weight" the district court
assigned to it. Cavera, 550 F.3d at 191. The district court
acted unreasonably by using the absence of proven harm to justify
completely discarding the terrorism component of Stewart's crime

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and to support an unwarranted mitigation of the seriousness of
the crime of conviction. See 18 U.S.C. § 3553 (a) (2) (A) .

My colleagues in the majority also suggest that because
Stewart's terrorism crimes preceded the events of September 11,
2001 her view of her own culpability might have been different
than would be true after that tragic day. While such a lack of
awareness may be true of the ordinary New Yorker, such
attribution is ill-suited for Stewart who, as Abdel Rahman' s
lawyer, sat through extensive horrific evidence at his trial,
including that the Islamic Group was responsible for the
slaughter of scores of innocent tourists at Luxor and the Islamic
Group's plans to bring New York to its knees by blowing up
buildings, bridges, tunnels, and by assassinating the Egyptian
President while in New York City.

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

After jettisoning the terrorism component of Stewart's crime
in assessing the seriousness of Stewart's crime of conviction
pursuant to § 3553 (a) (2) (A), the district court then noted that -
with this mitigation - the Guidelines (absent the terrorism
enhancement) would provide for a sentencing range for Stewart of
either 78 to 97 months or 97 to 121 months, depending on whether
the obstruction of justice enhancement applied. I join the
majority's view that the district court's failure to make any
findings regarding obstruction was procedurally unreasonable.
Maj. Op. at [123-124]. The district court's reason for not

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making such findings was that there was no point in doing so,
because the terrorism enhancement took the Guidelines sentence to
the statutory maximum. After the district court rejected the
terrorism component of Stewart's sentence, however, the
obstruction enhancement became relevant to its hypothesis of a
revised Guidelines calculation. In addition, as the majority
notes, it was error for the district court not to account for
Stewart's potential perjury in the § 3553 (a) calculus. See
Cavera, 550 F.3d at 190.

### c. The Absence of an Enhancement for Abuse of Trust

The majority properly faults the district court for failing
to "explain how and to what extent the sentence reflected the
seriousness of the crimes of conviction in light of the fact that
Stewart was . . . a member of the bar when she committed them."
Maj. Op. at [121]. The majority asks whether, in that light,
"her punishment should have been greater than it was," and then
suggests the obvious answer. Maj. Op. at [121]. I agree with
the majority's criticism. As a "guardian[] of the law," a lawyer
has a special obligation to "refrain from all illegal and morally
reprehensible behavior." New York Code of Professional
Responsibility, Preamble, EC 1-5 (effective through March 31,
2009). However, the majority does not go far enough. Stewart
was not just a lawyer who committed crimes. And she did not use
her professional position simply to gain access to her client and
to carry his jihadist messages by criminal means, conduct that,
as noted in the previous section of this opinion reflects an

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extreme seriousness unreasonably overlooked by the district
court. Stewart also committed her material support crimes by
garnering the trust of the government, and then blatantly
violating that trust - a fiduciary obligation that lies at the
core of the SAMs system and that protects the right to counsel,
even for convicted terrorists.

Under the Guidelines, the abuse-of-trust enhancement applies
when a defendant has "abused a position of public or private
trust . . . in a manner that significantly facilitated the
commission or concealment of the offense." U.S.S.G. § 3B1.3
(2000). As the Commentary explains, a position of trust is
"characterized by professional or managerial discretion," for
"[p]ersons holding such positions ordinarily are subject to
significantly less supervision than employees whose
responsibilities are primarily non-discretionary in nature, " id.
cmt. n.1 (2000), and "[s]uch persons generally are viewed as more
culpable," id. cmt. background (2000) .

The district court failed to explain why an enhancement for
abuse of trust is not plainly appropriate in this case. The
majority fails to fault the district court on this score because
"the government did not specifically invoke section 3B1.3 in its
sentencing memorandum." Maj. Op. at [121 n.37]. But the
government explicitly argued for consideration of Stewart's abuse
of trust at the sentencing hearing:

[T]he United States Attorney's Office who was administering the SAMs
trusted Ms. Stewart, put their faith in Ms. Stewart that she was
doing what she promised to do. She considered that attorney
affirmation that she signed an oath, a promise. Those are her

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words. And the government accepted that commitment and believed she
would honor that commitment, but she violated that trust that was
put in her by the United States Attorney's Office, by the Justice
Department, repeatedly violated [it] .

Sent'g Tr. 95. As a result, the issue was properly before the
district court.

The SAMs placed trust in Stewart because she was a member of
the bar appointed under the Criminal Justice Act to represent
Abdel Rahman, and she made explicit affirmations to the
government specifically required to curb her client's ability to
continue terrorist activities. Only because of the SAMs did
Stewart have private access to, and "significantly less
supervision" in her contacts with, Abdel Rahman, U.S.S.G. § 3B1.3
cmt. n.1 (2000), and obtain the freedom she needed to act as his
lawyer. Stewart used, or more accurately abused, the trust that
the government placed in her to "facilitat[e] the commission . .
. of [her] offense," id., furthering terrorist communications
that put innocent lives in jeopardy. Stewart was only given
access to Abdel Rahman to discuss legal matters; instead, she
engaged in criminal actions that, as she conceded at trial, had
nothing to do with any past, pending, or future legal proceedings
and were unrelated to the rendering of legal advice. See Trial
Tr. 7722 (acknowledging that Abdel Rahman's "appeals [were]
exhausted, with no issue legally on the horizon") .

Stewart's abuse of trust is particularly significant because
it supports the arguments of those who say that our Article III
courts, and the constitutional protections they afford, are not
suited to terrorist trials. See generally, e.q., Michael B.

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Mukasey, Civilian Courts Are No Place To Try Terrorists, Wall St.
J., Oct. 19, 2009, at A21 (discussing the difficulties of trying
terrorists in Article III courts). The SAMs are designed to
safeguard those rights, but they must necessarily be conditioned
on attorneys respecting the trust placed in them, and cannot be
sustained without that trust. Stewart's conduct thus raises
concerns reaching even beyond her dealings with Abdel Rahman.
Her criminal acts jeopardize, in a sensitive set of cases, the
accused's right to his choice of independent counsel, which is
the right upon which the vindication of all of the accused's
other rights, and, in a larger sense, the right to a trial by an
Article III court, depends. 15

Section 3553 (a) requires a district court to consider all of
the Guidelines relevant to a defendant's conduct. See 18 U.S.C.
§ 3553 (a) (4) ; Cavera, 550 F.3d at 189 (requiring a district court
to "conduct its own independent review of the sentencing factors,
aided by the arguments of the prosecution and defense"). In
sentencing Stewart, the district court mentioned "abuse of trust"
as part of the litany of her crimes and noted that Stewart
"abused her position as a lawyer" in order to further Abdel
Rahman's terrorist quest. Sent'g Tr. 118. Yet the district
court gave no indication that it considered to any extent the

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.") .

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depth of Stewart's abuse of trust as argued by the government,
which went beyond simply abusing her position as a lawyer to gain
access to Abdel Rahman. By not fully responding to the
government's clear and forceful argument by considering the
policy reflected in U.S. S.G. § 3B1. 3, 16 and accounting for
Stewart's grave abuse of trust in assessing the seriousness of
Stewart's crime and imposing its sentence, the district court
erred procedurally.

d. The Impact of These Errors on the Rest of the $ 3553
Analysis

The district court's errors in assessing the seriousness of
Stewart's crime impacted other parts of its § 3553 analysis and,
for that reason, must be recognized if any remand in this case is
to yield a reasonable sentence. Necessarily, the district
court's unreasonable underappreciation of the gravity of
Stewart's offense, evident from its reasoning despite its
statements to the contrary, infected its consideration of "the
need . . . to afford adequate deterrence to criminal conduct," 18
U.S.C. § 3553 (a) (2), and "the need to avoid unwarranted sentence
disparities," id. § 3553 (a) (6), because both factors are
calibrated by the seriousness of the offense at stake. More
serious crimes require greater deterrence; an unreasonably low

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

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view of a crime's severity will taint a district court's stance
on whether a given sentence sufficiently deters future criminal
conduct, both for the specific defendant and for the public at
large. In no area can the need for adequate deterrence be
greater than in terrorism cases, with their potential for
devastating loss of innocent life. Similarly, an erroneous
assessment of a crime's seriousness precludes accurate comparison
with equally serious crimes, to avoid unwarranted disparities.
Thus, although the district court's mishandling of the
seriousness of Stewart's crime constitutes reversible error on
its own, I believe it also infects other judgments the court made
in its mandatory § 3553 (a) analysis.

2\. The District Court's Overwhelming Emphasis on Stewart's
Age, Health, and Career

The district judge found that Stewart's "extraordinary
personal characteristics . . . argue [d] strongly in favor of a
substantial downward variance," Sent'g Tr. 114, and used that
finding to effectively set aside the Guidelines and their
import.17 To be sure, it was appropriate, indeed required that

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

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the district judge consider Stewart's "history and
characteristics" under § 3553 (a) (1). But the district court
abused its discretion by allowing this factor to overwhelm its
consideration of "the need for the sentence imposed to reflect
the seriousness of the offense, to promote respect for the law, .
. . to provide just punishment for the offense, and . . . to
afford adequate deterrence to criminal conduct," 18 U.S.c. §
3553 (a) (2), and by using it to justify the deep discount of 332
months in Stewart's sentence. Indeed, given the magnitude of the
district court's error in evaluating the seriousness of the
offense in this case, it could not reasonably determine what
weight, if any, to assign to personal mitigating factors.

Although we have no specific formula for balancing the §
3553 (a) factors, "unjustified reliance upon any one factor is a
symptom of an unreasonable sentence," Rattoballi, 452 F.3d at
137, and here, the district judge's focus on Stewart's personal
qualities exceeded the bounds of reasonableness in light of the
gravity of her crimes. Whatever weight Stewart's career, age,
and physical condition might reasonably warrant, these factors
cannot support an unprecedentedly lenient 28-month sentence for
what the district court itself termed her "extraordinarily severe
criminal conduct." Sent'g Tr. 118; see supra note 3.

The imposition of a 28-month prison sentence "slighted,"
Taylor, 487 U.S. at 337, the extreme criminality of Stewart's

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

The district court's apparent disregard of "the need to
avoid unwarranted sentence disparities," 18 U.S.C. § 3553 (a) (6) ,
is particularly striking in light of the court's obligation to
consider "pertinent [Commission] policy statement [s]," id. §
3553 (a) (5) . For example, the Commission has determined that only
"an extraordinary physical impairment may be a reason to impose a
sentence below the applicable guideline range," U.S.S.G. § 5H1.4
(2000) (emphasis added), yet the record indicates that Stewart,
despite medical issues, will receive appropriate medical care in
prison, and the district judge himself acknowledged that
"[m]edical care can be delivered while in prison," Sent'g Tr.

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

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117\. The district judge, of course, is not bound by Commission
policy, but the record nowhere suggests that Stewart's condition
was sufficiently compelling to distinguish her from others in the
prison population and to warrant any leniency on that score. As
for Stewart's age, the Commission has concluded that this factor
"is not ordinarily relevant in determining whether a sentence
should be outside the applicable guideline range[, but it] may be
a reason to impose a sentence below the applicable guideline
range in a case in which the defendant is elderly and infirm . .
. . " U. S. S.G. § 5H1.1 (2000) . Again, the district court was not
bound by this statement. But the district judge's point that
Stewart's sentence "will represent a greater portion of her
remaining life than for a younger defendant," Sent'g Tr. 117,
would apply to any older defendant, and this is not an

extraordinary factor, such as being "elderly and infirm," that
can justify excessive leniency. See Rattoballi, 452 F.3d at 136
n. 4, 137. The district court cited both Stewart's age (67 years)
and health (sleep apnea; cancer survivor with a chance of
recurrence) in concluding that "[a]ny sentence of imprisonment
will be particularly difficult for the defendant." Sent'g Tr.
117. Yet as the majority notes, Maj. Op. at [26-27 n.9], Stewart
herself apparently did not share the district court's misgivings:
"I don't think anybody would say that going to jail for 28 months
is anything anyone would look forward to, but as my clients have

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told me, 'I can do that standing on my head.'"19 Stewart was not
"elderly and infirm," and I do not see how her age or health
could reasonably contribute to such a significant variance from
the Guidelines. Advancing age and treatable medical conditions
are not normally a ticket to overwhelming leniency, and this case
is no different from the norm in that respect.

Similarly, Stewart's career of public service, as admirable
as it seemed to the district court, can only go so far. "[I]t is
usually not appropriate to excuse a defendant almost entirely
from incarceration because [s]he performed acts that, though in
society's interest, also were the defendant's responsibility to
perform and stood to benefit the defendant personally and
professionally." United States v. D'Amico, 496 F.3d 95, 107 (1st
Cir. 2007). The district court placed emphasis on Stewart's
providing legal services to "the poor, the disadvantaged [, ] and
[the] unpopular over three decades," Sent'g Tr. 115, but as the
district judge himself put it, "that credit does not extend to
the knowing violation of the law," Sent'g Tr. 119. Yet given the
severity of Stewart's conduct, this credit, which contributed
heavily to a 332-month reduction from the recommended Guidelines
range to a 28-month sentence, goes further than the district
court's explanation can bear. Giving such excessive weight to
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.

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particularly when her legal career, by leading the government to
trust her, is what enabled her to commit these crimes.

Overemphasizing Stewart's career as a lawyer also fails to
"promote respect for the law" or "afford adequate deterrence to
criminal conduct" under any reasonable understanding of those
mandatory sentencing considerations. 18 U.S.C. § 3553 (a) (2) .
The district court found that Stewart's likely disbarment
"significantly . . . mean[t]' that the occasion for her offenses
will be removed," Sent'g Tr. 116. This is wrong. One does not
need a law license in order to materially support terrorism or to
defraud the U.S. government.

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. See Cavera, 550 F.3d at 192.

#### 3. Overall Substantive Unreasonableness

I by no means assume that, upon resentencing, Stewart's
sentence will remain at 28 months, but I would be remiss if I did
not comment further on Stewart's current sentence. Unlike the
majority, I do not believe that this court must hold off on the
question of substantive unreasonabless until the procedural flaws
it identifies are remedied. Maj. Op. at [99-100 n.33]. The
"informed intuition of the appellate panel" has a place in
appellate review. See United States v. Rigas, No. 08-3485-cr,
2009 WL 3166066, at *11 (2d Cir. Oct. 5, 2009). And in the rare

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instance when a sentence imposed by a district court judge makes
it plain that his judgment is in stark contrast with the
appellate panel's intuition - as evidenced, for example, by the
comparative sentences of co-defendants - judicial efficiency
counsels us to identify the substantive error along with
procedural error at this time to minimize the need for subsequent
appeals. This is not, as Judge Calabresi suggests, the issuing
of an advisory opinion. Op. of J. Calabresi at [12]. Rather it
is providing a district court with the full basis for the
appellate panel's remand prior to resentencing. 20

I stress that it is not the role of the appellate court to
compare the district court's sentence to what the appellate court
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?

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whether the sentence imposed by the district court is so high or
low that it is manifestly unjust or shocks-the-conscious. Id.
We are not a mere "rubber stamp." Id. (citing United States v.
Rattoballi, 452 F.3d 127, 132 (2d Cir. 2006)). "If we are going
to let (district) judges be judges, and trust them to exercise
the necessary discretion with sensitivity to the need for
coherent sentencing policy, so we should let (appellate) judges
be judges as well, performing their traditional function of
reining in excess and gradually developing a "common law" of what
is and is not sensible."21 Hon. Gerard E. Lynch, Sentencing
After Gall and Kimbrough: Letting Guidelines Be Guidelines (and
Judges Be Judges), Ohio St. J. Crim. L. Amici: Views From the
Field (Jan. 2008), available at http://osjclblogspot.com.

Even apart from the aggravating circumstances of Stewart's
obstruction of justice, her abuse of trust, and her false
statements to the government, Stewart's conduct was closer to
that of Sattar, whose 24-year sentence still represented a sharp
reduction from his Guidelines sentence of life imprisonment, than
that of Yousry. The district court found that Stewart and Sattar
had engaged in conduct that warranted application of the
terrorism enhancement and that was "calculated to influence or
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.

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24, 28, & 108, but that student interpreter Yousry had not,
Sent'g Tr. 143-44.

Nonetheless, Stewart's sentence was much closer to that of
Yousry, even though, as the district court noted, Yousry's "role
in the offenses was subservient to the others involved," Sent'g
Tr. 150. Stewart was given a sentence only eight months greater
than that of Yousry, and in relative terms, she was treated far
more leniently. Yousry's conduct, unlike that of Sattar and
Stewart, was found by the district court to not warrant the
terrorism enhancement; nor did Yousry falsely sign the SAMs or
merit consideration for obstruction-of-justice and abuse-of-trust
enhancements. As a result, Yousry's Guidelines range was 78 to
97 months, less than one-third of Stewart's Guidelines range of
360 months. Yousry's actual 20-month sentence represented just
under one-quarter of the 88-month median of his Guidelines range,
while Stewart's sentence was under one-tenth of her 360-month
Guidelines range. Under the Guidelines, more than 260 months
separated the sentences of Stewart and Yousry, yet the district
court chose sentences that were only eight months apart. Like
the majority, I am puzzled by this mismatch, particularly in
light of "the need to avoid unwarranted sentence disparities."
18 U.S.C. § 3553 (a) (6) .

Because Stewart's sentence is so out of line with the
extreme seriousness of her criminal conduct (and, not
surprisingly given that fact, with what the Guidelines
recommend), notwithstanding the considerable deference due the

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district court at sentencing, I conclude that Stewart's sentence
is not only procedurally unreasonable, but also substantively
unreasonable and an abuse of discretion. The district court's
rationale for the sentence cannot "bear the weight assigned it
under the totality of circumstances in the case." Cavera, 550
F.3d at 191. Indeed, I am at a loss for any rationale upon this
record that could reasonably justify a sentence of 28 months'
imprisonment for this defendant under § 3553 (a). Accordingly, in
addition to the procedural flaws that I have identified,
Stewart's sentence should be vacated as substantively
unreasonable and resentencing required on that basis.

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United States v. Sattar (Stewart; Yousry)

Testo completo

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