This is the first in a series of posts on United States v. Sattar (Stewart; Yousry). Lynne Stewart is a well known New York City criminal defense attorney. She represented Sheikh Omar Ahmad Ali Abdel Rahman who was charged with planning the 1993 bombing of the World Trade Center.

Rahman was convicted and sentenced to life in prison. While in prison he was considered a high security risk and was subject to “Special Administrative Measures” (SAMs) to prevent him from communicated with outside terrorist organizations. Stewart, along with Mohammed Yousry, and Abdel Sattar were convicted of violating the SAMs by holding a press conference in which Steward sent a message to the Sheik’s supporters in Egypt.

Tuesday the Second Circuit Court of Appeals ruled on the defendant’s appeal. The Court upheld the convictions and returned the case to the trial court for reconsideration of the sentence which was considered to be unusually mild. The primary opinion is 125 pages. Including concurring opinions the decision is 191 pages. Over the next several days we shall consider the Court’s opinion. Today we will look at the section dealing with Stewart’s sentence.

Congress passed mandatory sentencing guidelines for Federal criminal cases. But the Supreme Court ruled that the sentencing guidelines can only be advisory. Under the current scheme judges must first determine what the sentence would be under the guidelines and then provide a reason for sentencing to a non-guidelines sentence. Therefore the trial judge, John G. Koeltl, determined Stewart’s guidelines. He stopped when he got to the maximum for the offense, thirty years. But he decided to give her an out of guidelines sentence. He sentenced her to 28 months which of course is significantly below the guidelines. He gave a number of reasons. First the terrorist charges required that she be given a criminal history category of VI. But since she had no record he found that the Category VI was unreasonable. Second the trial court found that Stewart was unlikely to repeat her crime since she will lose her membership in the state bar, Third the court found that Steward personal characteristics are exceptional. She has spent her career representing the poor and the downtrodden often as a court appointed attorney. Fourth, the court took into consideration her health. She is a cancer victim and as a result her prison time is likely to be more difficult that for the average person.

The appellate court remanded the case to the trial judge and asked him to consider two factors which he did not consider since they would have put the sentence above the maximum sentence. The government alleges that when Stewart took the stand in her own defense she committed perjury. It also alleges that she abused her membership in the State Bar to violate the law. While these factors may not have been able to increase the guidelines the appellate court thought they should have been considered in determining whether to go outside the guidelines. Presumably after the trial court considers these factors the Second Circuit will reconsider the appeal and the government’s cross appeal.

The Second Circuit ordered the trial court to remand Stewart and revoke her bail on appeal. This seems rather strange in that the appeal will likely return to the Second Circuit and may yet be considered by the Supreme Court. The trial court is generally in a better position to determine whether or not to revoke Stewart’s bail on appeal and the appellate court should not have gotten involved in the issue.

In our next post we shall consider some of the other issues raised by the appeal.