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

1                       UNITED STATES COURT OF APPEALS

2                           FOR THE SECOND CIRCUIT

3                              August Term, 2007

4    (Argued: January 29, 2008               Decided: November 17, 2009)*

5     Docket Nos. 06-5015-cr (L), 06-5031-cr (con), 06-5093-cr (con),
6          06-5131-cr (con), 06-5135-cr (con), 06-5143-cr (con)

7                    -------------------------------------

8                          UNITED STATES OF AMERICA,

9                          Appellee-Cross-Appellant,

10                                  - v. -

11            LYNNE STEWART, MOHAMMED YOUSRY, AHMED ABDEL SATTAR,

12                  Defendants-Appellants-Cross-Appellees.

13                   -------------------------------------

14   Before:     WALKER, CALABRESI, and SACK, Circuit Judges.
15
16               Appeal by the defendants from judgments of conviction

17   of the United States District Court for the Southern District of

18   New York (John G. Koeltl, Judge) on charges arising from their

19   unauthorized contacts with and behavior relating to Sheikh Omar

20   Ahmad Ali Abdel Rahman, a high-security federal prisoner.      Abdel

21   Rahman, serving a life sentence for seditious conspiracy,

22   solicitation of murder, solicitation of an attack on American

23   military installations, conspiracy to murder, and conspiracy to

24   bomb, is subject to "Special Administrative Measures" designed to



          *
             The panel withheld consideration of this appeal pending
     the Court's en banc decision in United States v. Cavera, 550 F.3d
     180 (2d Cir. Dec. 4 2008).
1    restrict his communications with terrorist organizations and

2    their members.   The defendants were convicted principally with

3    respect to their violations of those measures by which they had

4    agreed to abide.   The government cross appeals, challenging the

5    reasonableness of the defendants' sentences.   We affirm the

6    judgments except with respect to the sentencing of defendant

7    Lynne Stewart, and remand all three cases to the district court.

8    The district court is directed to revoke Stewart's and Yousry's

9    bail pending appeal and to order them to surrender to the United

10   States Marshal to begin serving their sentences forthwith as

11   directed by the district court.

12             Judge Calabresi concurs, and also files a separate

13   concurring opinion.   Judge Walker concurs in part and dissents in

14   part in a separate opinion.

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

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

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

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

                                       -2-
1                               United States Attorney for the Southern
2                               District of New York, Andrew S. Dember,
3                               Michael D. Maimin, Diane Gujarati,
4                               Katherine Polk Failla, Celeste L.
5                               Koeleveld, Assistant United States
6                               Attorneys, of counsel), New York, NY,
7                               for Appellee-Cross-Appellant.

8    SACK, Circuit Judge:

9              Defendants Lynne Stewart, Mohammed Yousry, and Ahmed

10   Abdel Sattar appeal from judgments of conviction of the United

11   States District Court for the Southern District of New York

12   (John G. Koeltl, Judge) for various crimes arising from their

13   contacts with and behavior relating to government restrictions on

14   communications and other contacts with Sheikh Omar Ahmad Ali

15   Abdel Rahman.   Rahman is serving a life sentence in a maximum

16   security prison for terrorism-related crimes of seditious

17   conspiracy, solicitation of murder, solicitation of an attack on

18   American military installations, conspiracy to murder, and a

19   conspiracy to bomb.    He is subject to "Special Administrative

20   Measures" ("SAMs") restricting his ability to communicate with

21   persons outside of the prison in which he is incarcerated so as

22   to prevent him from continuing to lead terrorist organizations

23   and their members.    The government cross-appeals from the

24   defendants' sentences.

25             We would be remiss if we did not, at the outset,

26   commend the district court for its thoroughness, thoughtfulness,

27   and effectiveness in the conduct of these unusually lengthy,

28   difficult, and sensitive proceedings.    Much of what follows

29   simply reports what it did and tracks what it said.

                                      -3-
1              We affirm the judgments of conviction.   We also affirm

2    the sentences of Yousry and Sattar.   We remand the case, however,

3    with respect to the sentence of Stewart, and also with respect to

4    the sentences of Yousry and Sattar in light of the resentencing

5    of Stewart.

6              In particular, we affirm the judgments as to each

7    defendant's conviction of conspiring to defraud the United

8    States, in violation of 18 U.S.C. § 371, by violating SAMs

9    imposed upon Abdel Rahman.   Contrary to the defendants'

10   arguments, the evidence is sufficient to sustain these

11   convictions.   Moreover, we reject both Stewart's argument that,

12   as a lawyer, she was not bound by the SAMs, and her belated

13   argument collaterally attacking their constitutionality.

14             We affirm as to Sattar's conviction of conspiring to

15   murder persons in a foreign country in violation of 18 U.S.C.

16   § 956, and his conviction of soliciting persons to commit crimes

17   of violence -- viz., murder and conspiracy to commit murder -- in

18   violation of 18 U.S.C. § 373.   We conclude that the evidence is

19   sufficient to sustain these convictions, especially in light of

20   testimony establishing that Sattar attempted to undermine a

21   unilateral cease-fire by an Egyptian terrorist organization and

22   to draft a fatwa calling for, inter alia, the killing of "Jews

23   and Crusaders."

24             We affirm as to Stewart's and Yousry's convictions of

25   providing and concealing material support to the conspiracy to

26   murder persons in a foreign country in violation of 18 U.S.C.

                                     -4-
1    § 2339A and 18 U.S.C. § 2, and of conspiring to provide and

2    conceal such support in violation of 18 U.S.C. § 371.   We

3    conclude that the charges were valid -- that 18 U.S.C. § 2339A is

4    neither unconstitutionally vague as applied nor a "logical

5    absurdity," as Stewart asserts -- and that the evidence was

6    sufficient to sustain the convictions.   We also reject Stewart's

7    claims that her purported attempt to serve as a "zealous

8    advocate" for her client provides her with immunity from the

9    convictions.

10             Finally, we affirm Stewart's convictions for knowingly

11   and willfully making false statements in violation of 18 U.S.C.

12   § 1001 when she affirmed that she intended to, and would, abide

13   by the SAMs.   In light of her repeated and flagrant violation of

14   the SAMs, a reasonable factfinder could conclude that Stewart's

15   representations that she intended to and would abide by the SAMs

16   were knowingly false when made.

17             We reject the remaining challenges to the convictions.

18   We affirm the district court's rejection of Sattar's vindictive

19   prosecution claim because there is insufficient evidence to

20   support a finding that the government's pre-trial decision to add

21   new charges against Sattar amounted to an effort to punish him

22   for exercising his constitutional rights.   And, because Stewart's

23   conduct was materially different from, and more serious than, the

24   conduct of other lawyers representing Abdel Rahman who may also

25   have violated the SAMs, we affirm the district court's rejection

26   of Stewart's claim that she was selectively prosecuted on account

                                       -5-
1    of her gender or political beliefs.   We also conclude that the

2    district court did not abuse its discretion in declining to sever

3    the trial of Stewart and Yousry from that of Sattar in light of

4    the general preference for joint trials, the specific charges at

5    issue here, and the district court's curative instructions.    Nor

6    did the district court abuse its discretion by empaneling an

7    anonymous jury in light of the particular allegations of criminal

8    wrongdoing at issue, involving the corruption of the judicial

9    process, and the widespread publicity about the case.   We find no

10   fault with the district court's resolution of allegations of

11   juror impropriety.   We also agree with the district court's

12   treatment of confidential information, including its denial of

13   Stewart's motion to suppress evidence obtained pursuant to the

14   Foreign Intelligence Surveillance Act ("FISA"), its ex parte, in

15   camera examination of FISA wiretap applications, and its

16   rejection of Stewart's more general challenges to the

17   constitutionality of FISA.   Finally, we find no fault with the

18   district court's treatment, in accordance with the Classified

19   Information Procedures Act ("CIPA"), of Stewart's motion to

20   compel disclosure of information related to potential

21   surveillance conducted by the National Security Agency.

22             We therefore affirm the convictions in their entirety.

23             We also affirm the sentences of Sattar and Yousry.    We

24   conclude that the district court committed neither procedural

25   error in calculating the applicable Guidelines ranges, nor

26   substantive error in varying from those ranges pursuant to its

                                     -6-
1    consideration of the factors set forth in 18 U.S.C. § 3553(a).

2    We nonetheless remand their cases to the district court to allow

3    it to reconsider their sentences should it choose to do so in

4    light of the resentencing of Stewart.

5              We cannot affirm Stewart's sentence on the basis of the

6    record before us.   Because the district court declined to find

7    whether Stewart committed perjury at trial, we cannot conclude

8    that the mitigating factors found to support her sentence can

9    reasonably bear the weight assigned to them.   This is so

10   particularly in light of the seriousness of her criminal conduct,

11   her responsibilities as a member of the bar, and her role as

12   counsel for Abdel Rahman.   We therefore remand the cause to the

13   district court for further consideration of her sentence, in

14   light of, among other things, the charges of perjury against her

15   and of any other matter it deems necessary or advisable, and

16   direct the court to revoke Stewart's and Yousry's bail pending

17   appeal and to order them to surrender to the United States

18   Marshal to begin serving their sentences forthwith.

19                               BACKGROUND

20             The transcript of the trials in the cases on appeal

21   runs in excess of thirteen thousand pages.   The district court

22   issued nine opinions and a wide variety of orders addressing

23   issues presented during the course of the proceedings.   See

24   principally, United States v. Sattar, 272 F. Supp. 2d 348

25   (S.D.N.Y. 2003) ("Sattar I");   United States v. Sattar, No. 02

26   Cr. 395 (JGK), 2003 WL 22137012, 2003 U.S. Dist. LEXIS 16164

                                     -7-
1    (S.D.N.Y. Sept. 15, 2003) ("Sattar II"); United States v. Sattar,

2    314 F. Supp. 2d 279 (S.D.N.Y. 2004) ("Sattar III"); United States

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

4    United States v. Sattar, 395 F. Supp. 2d 79 (S.D.N.Y. 2005)

5    ("Sattar V").1    The filings in this Court reflect the massiveness

6    of the record.2   We therefore describe the proceedings in the

7    district court and the relevant facts only in the detail we think

8    necessary to explain our decision.     In reviewing the conviction,

9    we set forth the facts, as we must, in the light most favorable

10   to the government.    See United States v. Aleskerova, 300 F.3d

11   286, 292 (2d Cir. 2002).

12             The SAMs

13             In October 1995, Sheikh Omar Ahmad Ali Abdel Rahman was

14   convicted of a variety of terrorism-related crimes in the United

15   States District Court for the Southern District of New York.

16   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).

                                      -8-
 1              Abdel Rahman, a blind Islamic scholar and
 2              cleric, was the leader of [a] seditious
 3              conspiracy, the purpose of which was "jihad,"
 4              in the sense of a struggle against the
 5              enemies of Islam. Indicative of this
 6              purpose, in a speech to his followers Abdel
 7              Rahman instructed that they were to "do jihad
 8              with the sword, with the cannon, with the
 9              grenades, with the missile . . . against
10              God's enemies." Abdel Rahman's role in the
11              conspiracy was generally limited to overall
12              supervision and direction of the membership,
13              as he made efforts to remain a level above
14              the details of individual operations.
15              However, as a cleric and the group's leader,
16              Abdel Rahman was entitled to dispense fatwas,
17              religious opinions on the holiness of an act,
18              to members of the group sanctioning proposed
19              courses of conduct and advising them whether
20              the acts would be in furtherance of jihad.[3]
21   United States v. Rahman, 189 F.3d 88, 104 (2d Cir. 1999) (per

22   curiam), cert. denied, 528 U.S. 1094 (2000) (citations omitted).

23   The crimes of conviction included soliciting the murder of

24   Egyptian President Hosni Mubarak while he was visiting New York

25   City; attacking American military installations; conspiring to

26   murder President Mubarak; conspiring to bomb the World Trade

27   Center in 1993, which succeeded; conspiring subsequently to bomb

28   various structures in New York City, including bridges, tunnels,

29   and the federal building containing the New York office of the

30   Federal Bureau of Investigation ("FBI"), which did not succeed;

31   and conspiring to commit crimes of sedition.   Id. at 103-04, 107-

32   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").

                                     -9-
1    incarcerated for the remainder of his life.    Id. at 148.

2    Following his conviction and appeal therefrom, Abdel Rahman's

3    legal team focused on two goals: improving his conditions of

4    confinement, and obtaining his transfer from prison in the United

5    States to Egypt.

6               The government asserts that Abdel Rahman was linked to

7    various other acts of violence:   He is said to be, or to have

8    been, a spiritual leader of what the indictment in the instant

9    prosecution refers to as "'al-Gama'a al-Islamiyya,' a/k/a 'al-

10   Gama'at,' a/k/a 'Islamic Gama'at,' a/k/a 'Egyptian al-Gama'at al-

11   Islamiyya'" (hereinafter, "al-Gama'a"), also referred to by the

12   district court and the parties in English as the "Islamic Group"

13   or "IG."   See Superseding Indictment ¶ 8.   Al-Gama'a was

14   designated a foreign terrorist organization ("FTO") by the United

15   States Secretary of State in 1997 pursuant to 8 U.S.C. § 1189,

16   see Notices, Designation of Foreign Terrorist Organizations,

17   Department of State, Office of the Coordinator for

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

19   redesignated an FTO in 1999 and 2001, see Notices, Designation of

20   Foreign Terrorist Organizations, Department of State, Office of

21   the Coordinator for Counterterrorism, 64 Fed. Reg. 55112 (Oct. 8,

22   1999); Notices, Redesignation of Foreign Terrorist Organization,

23   Department of State, Office of the Coordinator for

24   Counterterrorism, 66 Fed. Reg. 51088 (Oct. 5, 2001), and remains

25   so designated today, see Foreign Terrorist Organizations, Fact

26   Sheet, Department of State, Office of the Coordinator for

                                    -10-
1    Counterterrorism (Apr. 8, 2008), available at

2    http://www.state.gov/s/ct/rls/fs/08/103392.htm (last visited Mar.

3    28, 2009).

4              "Federal regulations provide that the Bureau of Prisons

5    may implement SAMs, '[u]pon direction of the Attorney General,'

6    when 'reasonably necessary to protect persons against the risk of

7    death or serious bodily injury.'    28 C.F.R. § 501.3(a)."   In re

8    Basciano, 542 F.3d 950, 954 (2d Cir. 2008) (alteration in

9    original), cert. denied, 128 S. Ct. 1401 (2009).    The Bureau of

10   Prisons, following Abdel Rahman's remand to its custody in August

11   1997, imposed severely restrictive SAMs upon him.    They were

12   designed to prevent him from directing or facilitating yet more

13   violent acts of terrorism from his prison cell.    The SAMs have

14   been renewed, and sometimes modified, every 120 days since they

15   were first imposed.

16             The May 11, 1998, SAMs applicable to Abdel Rahman

17   "prohibited [him] from having contact with . . . others (except

18   as noted in this document) that could foreseeably result in [him]

19   communicating information (sending or receiving) that could

20   circumvent the SAM intent of significantly limiting [his] ability

21   to communicate (send or receive) terrorist information."     SAMs of

22   May 11, 1998, ¶ 3.    To enforce this general prohibition, the

23   measures regulated Abdel Rahman's telephone contacts, id. ¶ 4,

24   his mail, id. ¶ 5, and his visitors' visits, id. ¶ 6.    The

25   measures limited his telephone contacts solely to his attorneys

26   of record and his wife, id. ¶ 4(a), and prevented matters

                                     -11-
1    discussed in those calls from being "divulged in any manner to

2    any third party," id. ¶ 4(c)(i).    The measures required the

3    screening of all his outgoing and incoming non-legal mail, id. ¶

4    5, and prohibited him from "talk[ing] with, or otherwise

5    communicat[ing] with, any representative of the news media,"

6    including "through [his] attorney(s)/staff, or otherwise," id.

7    ¶ 8.   The measures also provided for the monitoring of all non-

8    legal visits.   Id. ¶ 6.   On the condition that his attorneys

9    would not divulge any information to third parties, Abdel Rahman

10   was permitted to communicate with his legal team by telephone,

11   id. ¶¶ 4(a) & 4(d), mail, id. ¶ 5(a), and in person, id. ¶ 6,

12   with fewer restrictions than with other persons.    Members of this

13   legal team included lawyers Ramsey Clark, Abdeen Jabara, Lawrence

14   Schilling, and defendant Lynne Stewart.

15              Subsequent versions of the SAMs retained similar

16   prohibitions and screening mechanisms including the prohibition

17   against communications with the news media.    See, e.g., SAMs of

18   Apr. 7, 1999, ¶ 9; SAMs of Dec. 10, 1999, ¶ 9.    They retained

19   similar provisions regarding legal communications, and

20   incorporated provisions requiring Abdel Rahman's attorneys to

21   sign affirmations acknowledging their receipt of the version of

22   the SAMs in effect.   See, e.g., SAMs of Apr. 7, 1999, ¶ 4; SAMs

23   of Dec. 10, 1999, ¶ 4.     By virtue of those affirmations, counsel

24   agreed to abide by the terms of SAMs then in effect.    See, e.g.,

25   Unsigned Affirmation of Abdeen Jabara, Apr. 2000; Unsigned

26   Affirmation of Ramsey Clark, Apr. 2000; Affirmation of Ramsey

                                      -12-
1    Clark, Jan. 10, 2001; Affirmation of Abdeen Jabara, Jan. 10,

2    2001; Affirmation of Ramsey Clark, Apr. 24, 1997.

3              Stewart repeatedly executed such statements.     On May 1,

4    1998, she signed a document entitled "Attorney Affirmation," in

5    which she affirmed, under penalty of perjury, the truth of

6    specified statements regarding the then-applicable SAMs: that she

7    had read the May 11, 1998, version of the SAMs; that she

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

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

10   Rahman she would "employ only cleared translators/interpreters

11   and [would] not leave [any] translator/interpreter alone with

12   inmate Abdel Rahman"; and that she would "only be accompanied by

13   translators for the purpose of communicating with inmate Abdel

14   Rahman concerning legal matters."      Affirmation of Lynne Stewart,

15   May 1, 1998.   Stewart also affirmed that neither she nor any

16   member of her office would "forward any mail received from inmate

17   Abdel Rahman to a third person" nor would she "use [her]

18   meetings, correspondence or phone calls with Abdel Rahman to pass

19   messages between third parties (including, but not limited to,

20   the media) and Abdel Rahman."   Id.    On May 16, 2000, and again on

21   May 7, 2001, Stewart signed similar affirmations under penalty of

22   perjury, again affirming that she had read the most recent

23   versions of the SAMs, and that she would not use her contact with

24   Abdel Rahman to pass messages between him and third parties,

25   including members of the media.   Affirmation of Lynne Stewart,

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

                                     -13-
1               Defendant Mohammed Yousry, a middle-aged New York

2    University graduate student who served as one of the legal team's

3    translators had also been, in that capacity, a member of Abdel

4    Rahman's trial team.    As a translator, Yousry was permitted to

5    read to Abdel Rahman, who is blind, and to take dictation from

6    him.

7               Various members of the team, including Stewart and

8    Yousry, also maintained contact with defendant Ahmed Abdel

9    Sattar, who had served as a paralegal during Abdel Rahman's

10   trial.   The evidence established that Sattar was in continual

11   contact with various members of al-Gama'a abroad.    See, e.g.,

12   Transcript of Conversation between Ahmed Abdel Sattar and Rifa'i

13   Ahmad Taha Musa, May 9, 2000.

14              The Visits to Abdel Rahman

15              Sometime in 1997, more than three years after Abdel

16   Rahman was taken into federal custody, a faction of al-Gama'a

17   declared a unilateral "cease-fire," i.e., a halting of violent

18   operations, in Egypt.    When the cease-fire was first announced,

19   Abdel Rahman was understood to support it.

20              In November 1997, despite the cease-fire, a group

21   associated with al-Gama'a attacked, killed, and mutilated the

22   bodies of more than sixty tourists, guides, and guards at the

23   Hatshepsut Temple in Luxor, Egypt.     Rifa'i Taha Musa ("Taha") --

24   a military leader of al-Gama'a, a follower of Abdel Rahman, and

25   an unindicted co-conspirator herein -- was involved in the



                                     -14-
1    incident.4    Alaa Abdul Raziq Atia ("Atia"), later a leader of

2    al-Gama'a's military wing in Egypt, was also involved in the

3    killings.     Al-Gama'a later claimed responsibility for the attack

4    and demanded Abdel Rahman's release from prison in the United

5    States.

6                 In January 1998, Abdel Rahman was assigned by the

7    Bureau of Prisons to the Federal Medical Center in Rochester,

8    Minnesota ("FMC Rochester").     In March 1999, Stewart and Yousry

9    visited him there.     Prior to the visit, Stewart signed and

10   delivered to the United States Attorney's Office for the Southern

11   District of New York a document in which she affirmed, under

12   penalty of perjury, that she would abide by the SAMs imposed by

13   the Bureau of Prisons on Abdel Rahman.

14                At about this time, defendant Sattar was in contact

15   with members of al-Gama'a, who were divided over their support

16   for what remained of the cease-fire.     Pro-cease-fire and anti-

17   cease-fire factions developed, and members of the organization

18   wanted Abdel Rahman to take a position on the matter.     To that

19   end, several wrote messages addressed to Abdel Rahman, which they

20   sent to Sattar for delivery to Abdel Rahman.     Sattar gave the

21   messages to Stewart and Yousry, who surreptitiously brought the

22   messages with them to Abdel Rahman during a subsequent visit in

23   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.

                                      -15-
1               Yousry read the messages to Abdel Rahman during the

2    visit, and Abdel Rahman dictated to Yousry responses to some of

3    them.   Yousry and Stewart then smuggled the responses out of FMC

4    Rochester among their legal papers, and sent them to Sattar.     As

5    directed by Abdel Rahman, Sattar informed various members of al-

6    Gama'a that Abdel Rahman was willing to reconsider the

7    effectiveness of the cease-fire and had rejected the associated

8    idea that al-Gama'a should form a political party in Egypt.

9               News of Abdel Rahman's purported position spread.     But

10   some members of the media in the Middle East expressed skepticism

11   about the veracity of Sattar's representations, questioning

12   whether they in fact came from Abdel Rahman or whether Sattar had

13   fabricated them himself.   To refute those reports, Sattar and

14   Yousry asked one of Abdel Rahman's lawyers, former United States

15   Attorney General Ramsey Clark, to tell a reporter for an Arabic-

16   language newspaper that Abdel Rahman opposed al-Gama'a's

17   formation of a political party.    Clark, they thought, would be

18   perceived as more authoritative than Sattar.    Clark eventually

19   agreed to talk to the reporter.    He told the reporter that "[t]he

20   Sheikh has said he believes that the formation of a new political

21   party to engage in politics in Egypt at this time is . . .     not

22   correct and should not be done."    Transcript of Conversation

23   between Ahmed Abdel Sattar, Mohammed Yousry, Ramsey Clark, and

24   Muhammad Al-Shafi'i, Nov. 5, 1999, at 15.

25              In September 1999, Farid Kidwani, the then-leader of

26   al-Gama'a's military wing, was killed along with three other

                                    -16-
1    members of the group in a shootout with Egyptian police.

2    Kidwani's death precipitated further tension and debate within

3    al-Gama'a regarding the advisability and efficacy of the cease-

4    fire.

5               Taha sent another message to Sattar to be relayed to

6    Abdel Rahman urging Abdel Rahman to support the termination of

7    the cease-fire and noting that Taha and his associates needed a

8    "powerful word" from Abdel Rahman to achieve this goal.    Taha

9    told Sattar that such support from Abdel Rahman would "strengthen

10   me among the brothers."    Sattar agreed to send the message to

11   Abdel Rahman and prepared a letter to Abdel Rahman for that

12   purpose.   In mid-September 1999, Clark and Yousry surreptitiously

13   took the letter, along with newspaper articles relating to the

14   killing of Kidwani in Egypt, with them during a visit to Abdel

15   Rahman in FMC Rochester.    Yousry read the letter and newspaper

16   clippings aloud to Abdel Rahman.    From these documents, Abdel

17   Rahman first learned of Kidwani's death.

18              Abdel Rahman dictated a letter to Yousry in response.

19              To those against whom war is made, permission
20              is given to fight, because they are wronged
21              (oppressed) -- and verily God is most
22              powerful for their aid. . . . The latest
23              thing published in the newspapers was about
24              the Egyptian regime's killing of four members
25              of the Group. This is . . . enough proof
26              that the Egyptian regime does not have the
27              intention to interact with this peaceful
28              Initiative [i.e., the cease-fire] which aims
29              at unification. I therefore demand that my
30              brothers, the sons of [al-Gama'a] do a
31              comprehensive review of the Initiative and
32              its results. I also demand that they
33              consider themselves absolved from it.

                                     -17-
1    Transcript of Conversation between Ahmed Abdel Sattar and Rifa'i

2    Ahmad Taha Musa, Sep. 20, 1999, at 6-7 (emphasis omitted,

3    parenthetical in original).   Sattar expected Clark to make a

4    public statement to similar effect, but Clark declined to do so.

5               On February 18 and 19, 2000, Yousry and Abdeen Jabara,

6    an Arabic-speaking lawyer and member of Abdel Rahman's legal

7    team, visited Abdel Rahman at FMC Rochester.   They brought with

8    them another letter which included another message from Taha,

9    again asking for Abdel Rahman's support for ending the cease-

10   fire.   But Jabara would not permit Abdel Rahman to dictate a

11   letter to Yousry in response.   And, notwithstanding pressure from

12   Sattar and Taha, Jabara, like Clark before him, refused to issue

13   any public statement regarding Abdel Rahman's position on the

14   matter.

15              On May 16, 2000, defendant Stewart signed another

16   affirmation that she and her staff would abide by the SAMs.     She

17   did not submit that affirmation to the United States Attorney's

18   Office until May 26.

19              On May 18, 2000, Stewart met with Sattar, who gave her

20   more letters for Abdel Rahman, including another message from

21   Taha yet again seeking Abdel Rahman's approval of an end to the

22   cease-fire.   Taha asked Abdel Rahman to take a "more forceful

23   position" regarding the end of the cease-fire and to "dictate

24   some points we can announce in a press conference with Lynne."

25   Transcript of Second Audiovisual Recording involving Omar Abdel


                                     -18-
1    Rahman, Mohammed Yousry, Lynne Stewart, and others, May 19, 2000,

2    ("Video Tr. May 19, 2000, Tape 2"),5 at 36.

3              On May 19 and 20, 2000, Stewart and Yousry visited

4    Abdel Rahman, taking Sattar's most recent letters with them,

5    including the letter containing the message from Taha.

6    Unbeknownst to them, the government, pursuant to a warrant,

7    videotaped the meetings.   Yousry told Abdel Rahman that Abu

8    Sayyaf -- an Islamic terrorist group in the Philippines -- had

9    taken hostages to be used in bargaining for the release of Abdel

10   Rahman and others.   When Yousry explained to Stewart that he was

11   "telling the Sheikh about the Abu Sayyaf group in the

12   Philippines" and how "they took hostages," Stewart replied, "Good

13   for them."   Transcript of First Audiovisual Recording involving

14   Omar Abdel Rahman, Mohammed Yousry, and Lynne Stewart, May 19,

15   2000, at 27.

16             From the beginning of the visit, Stewart was aware of

17   the prison guards' presence.   For example, she asked Yousry, "Do

18   they usually sit like this and watch us?"     Id. at 10.   And during

19   this meeting, Stewart and Yousry took overt steps to ensure that

20   the nature of their communication with Abdel Rahman would be

21   concealed from the prison guards.     As she suggested to Yousry,

22   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."

                                    -19-
1    Id. at 11.   When the guards were standing close to the window of

2    the conference room in which Abdel Rahman, Stewart, and Yousry,

3    were meeting Yousry told Stewart to "look at me and talk a little

4    bit because they are watching us closely."      Id. at 51.   While

5    Yousry read the message to Abdel Rahman, Stewart uttered a

6    meaningless series of phrases to Yousry so that it would appear

7    to an observer as though she was taking part in a three-way

8    conversation:    "I am talking to you about. . . him going to have

9    a, uh, chocolate eh . . .   heart attack here . . . .     Why don't

10   you stop a minute now.   And (UI)6 say to him that, you know, 'You

11   understood what we are saying, (UI).'"    Id.    As Stewart spoke,

12   Yousry said to Abdel Rahman, "I don't know, Sir, they are

13   standing very close by the glass. . . .      Lynne says, (UI) when

14   they look, you look at me a little, talk, then look at the

15   Sheikh."   Id.

16              Stewart continued to talk while Yousry read aloud

17   Taha's statement in Sattar's letter.   Yousry explained to Abdel

18   Rahman that "Lynne just says anything, [laughing] (UI) Sir."         Id.

19   at 52 (bracketed material in original).      Stewart remarked, "I can

20   get an academy award for it."   Id.

21              Stewart and Yousry then had this exchange:

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




          6
              "UI" stands for "unintelligible."

                                     -20-
1              STEWART: (UI) there (UI), they, uh, (UI). . .
2              [she taps Yousry's pad with her pen]7 uhm, if
3              he finds out what this is, then we’re . . .
4              [Laughs.]

5              YOUSRY: [Laughs] In trouble.

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


7    Video Tr. May 19, 2000, Tape 2, at 29 (brackets in original).

8              Stewart and Yousry also took evasive action when a

9    guard appeared to take interest in their conversation.        At one

10   point, while Yousry was conversing with Abdel Rahman, Stewart

11   touched Yousry's hand and said "Why don't you stop there and

12   we'll talk a minute um, the, uh. . . .     Ahmed's youngest son

13   needs glasses, did you know that?"     Id. at 30.    Yousry then

14   explained to Abdel Rahman, "Lynne says, stop a little because

15   they are by the glass."   Id.   Not long afterwards, Stewart tapped

16   with the pen on the paper in front of Yousry and told him to

17   "continue reading this 'cause this is setting up the

18   organizational system around his conditions."       Id.   Yousry

19   continued reading.   Stewart then made a series of statements

20   unrelated to the substance of the conversation between Yousry and

21   Abdel Rahman.   Yousry kept Abdel Rahman informed of what Yousry

22   and Stewart were doing, noting that "Lynne continues to eh, she's

23   watching them, she's watching them," to which Abdel Rahman

24   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.

                                     -21-
1    finished reading Taha's message to Abdel Rahman, he returned it

2    to a notebook that he had brought with him and with which he

3    left.

4              On the second day of the same visit, Abdel Rahman

5    dictated to Yousry, among other things, a letter to an al-Gama'a

6    lawyer who favored the cease-fire, asking him to allow others in

7    al-Gama'a to criticize it, and another to Taha asking him to

8    "escalate the language" of criticism of the cease-fire.      Video

9    Tr. May 20, 2000, Tape 2, at 32.

10             Meanwhile, Stewart and Yousry continued to engage in

11   what Stewart later called "[c]overing noises," Video Tr. July 13,

12   2001, Tape 2, at 12, and other tactics designed to obscure the

13   nature of what they were doing.     After one such incident, Yousry

14   explained to Abdel Rahman, "[S]he just has to say that in order

15   to break the . . .   The people are looking."    Video Tr. May 20,

16   2000, Tape 1, at 14.     Stewart told Yousry, "I am making

17   allowances for them looking in at us and seeing me never speaking

18   and writing away here while you talk Arabic."     Id. at 17.   She

19   then directed Yousry to "talk back to me now, because otherwise

20   it doesn't make any sense. . . .     So say something in

21   English . . . ."   Id.    As Yousry explained to Abdel Rahman, "We

22   are now acting, I talk to her in Arabic, and she responds in

23   English, and they don't understand what is going on."      Video Tr.

24   May 20, 2000, Tape 2, at 38.

25             At the end of the visit, Stewart and Yousry took the

26   Yousry-transcribed responses from Abdel Rahman with them from the

                                      -22-
1    prison, and later gave them to Sattar.      Sattar then passed them

2    along to Taha and another member of al-Gama'a.      Sattar also spoke

3    to various members of al-Gama'a, informing them that Abdel Rahman

4    would have "no objection" to a return to violence.      Transcript of

5    Audio Recording of Ahmed Abdel Sattar, Rifa'i Ahmad Taha Musa,

6    and Salah Hashim, May 29, 2000, at 3.

7              At about this time, Sattar told members of al-Gama'a

8    that Stewart would be making a public statement about Abdel

9    Rahman's views on the cease-fire.      Sattar and Stewart first

10   discussed what Stewart would say to the press.      Then, on June 13,

11   2000, Sattar and Stewart spoke to Esmat Salaheddin, a Reuters

12   reporter based in Cairo.   Stewart told Salaheddin that Abdel

13   Rahman "is withdrawing his support for the ceasefire that

14   currently exists."   Trial Transcript ("Trial Tr.") at 5574, 5617,

15   testimony of Salaheddin.   She explained that Abdel Rahman had

16   made the statement from prison two weeks before.

17             The next day, other Middle Eastern press outlets

18   carried the news that Abdel Rahman had withdrawn his support for

19   the cease-fire.   Many noted that for the cease-fire to hold,

20   Abdel Rahman's support was essential.

21             On June 20, 2000, Stewart participated in a telephone

22   conference with Abdel Rahman.   She then sent another statement on

23   Abdel Rahman's behalf via facsimile to Salaheddin, the Reuters

24   reporter in Cairo.   The telecopy said, "Everything said in the

25   previous statements is correct" and quoted Abdel Rahman as

26   saying, "I do withdraw my support to the [cease-fire]

                                     -23-
1    initiative."    Statement for Release, Abdel Rahman, June 20, 2000.

2    Following Stewart's statements on Abdel Rahman's behalf, several

3    members of al-Gama'a began preparations to engage anew in acts of

4    violence.

5                On October 4, 2000, Sattar and Taha completed a fatwa

6    on Abdel Rahman's behalf, imitating his style, "mandating the

7    killing of the Israelis everywhere" and "the killing [of] the

8    Jews wherever they are (UI) and wherever they are found."

9    Transcript of Audio Recording of Ahmed Abdel Sattar and Yassir

10   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...)

                                     -24-
1    sent the fatwa to, among others, Atia, who had in the meantime

2    become the military leader of al-Gama'a.     Upon receiving the

3    message, Atia began preparing for an attack.     But, on October 19,

4    2000, before Atia could act, the Egyptian authorities raided his

5    hideout, killing him and killing or arresting other al-Gama'a

6    members.

7                 On July 13 and 14, 2001, Stewart again paid a visit to

8    Abdel Rahman at FMC Rochester, having signed a revised

9    affirmation agreeing to abide by the SAMs and having sent the

10   affirmation by facsimile to the United States Attorney's Office

11   for the Southern District of New York on May 7, 2001.     Stewart

12   again, with Yousry's assistance and contrary to provisions of the

13   SAMs, surreptitiously brought messages to and from Abdel Rahman.

14                Procedural History

15                On April 8, 2002, the defendants were indicted in

16   connection with these and related acts; a superseding indictment

17   was filed on November 19, 2003.     On February 10, 2005, a jury

18   found the defendants guilty on all counts in the superseding

19   indictment.     Specifically, all three defendants were convicted of

20   conspiring to defraud the United States in violation of 18 U.S.C.

21   § 371 (Count One) by violating SAMs imposed upon Abdel Rahman,

22   and various related offenses.     Sattar was convicted of conspiring



          8
              (...continued)
                  the USA's prisons, and a scholar of the
                  Azhar.
     Audio Tr. Oct. 4 at 13, 15-17.

                                       -25-
1    with Taha, Abdel Rahman, and others to murder persons in a

2    foreign country in violation of 18 U.S.C. § 956 (Count Two), and

3    with soliciting persons to commit crimes of violence -- murder

4    and conspiracy to commit murder -- in violation of 18 U.S.C. §

5    373 (Count Three).     Stewart and Yousry were convicted of

6    providing and concealing material support to the Count-Two

7    conspiracy, in violation of 18 U.S.C. § 2339A and 18 U.S.C. § 2

8    (Count Five), and with conspiracy to provide and conceal such

9    support, in violation of 18 U.S.C. § 371 (Count Four).     Stewart

10   was also convicted of making false statements in violation of 18

11   U.S.C. § 1001 (Counts Six and Seven).

12                On October 16, 2006, following the denial of the

13   defendants' motions for a judgment of acquittal and other relief,

14   the district court sentenced the defendants.     See Sentencing

15   Transcript of Oct. 16, 2006 ("Sent'g Tr.").     Sattar was sentenced

16   to a 288-month term of incarceration to be followed by a five-

17   year term of supervised release and a $300 special assessment;

18   Stewart was sentenced to a 28-month term of incarceration to be

19   followed by a two-year term of supervised release and a $500

20   special assessment; and Yousry was sentenced to a 20-month term

21   of incarceration to be followed by a two-year term of supervised

22   release and a $300 special assessment.     Sattar is currently

23   serving his sentence; Stewart and Yousry are free on bail pending

24   appeal.9


          9
                We are aware of a statement famously attributed to
                                                           (continued...)

                                      -26-
1              All three defendants appeal, challenging the validity

2    of their convictions on a variety of grounds.    The government

3    challenges the reasonableness of the sentences on cross-appeal.

4                                DISCUSSION

5              I.   Standard of Review

6              We review de novo the district court's legal

7    conclusions, including those interpreting and determining the

8    constitutionality of a statute.     United States v. Awadallah, 349

9    F.3d 42, 51 (2d Cir. 2003), cert. denied, 543 U.S. 1056 (2005).

10   We also review de novo a district court's denial of a motion

11   pursuant to Federal Rule of Criminal Procedure 29 for a judgment

12   of acquittal on the ground that the evidence was insufficient to

13   sustain the conviction.   United States v. Florez, 447 F.3d 145,

14   154 (2d Cir.), cert. denied, 549 U.S. 1040 (2006).    Because the

15   jury verdict will be upheld against a sufficiency challenge "if

16   we find that 'any rational trier of fact could have found the

17   essential elements of the crime beyond a reasonable doubt,'"

18   United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000)

19   (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.

                                    -27-
1    in Jackson)), a convicted defendant making such a claim "bears a

2    very heavy burden," United States v. Desena, 287 F.3d 170, 177

3    (2d Cir. 2002).    We are required to evaluate "all of the evidence

4    in the light most favorable to the government."    United States v.

5    Aleskerova, 300 F.3d 286, 292 (2d Cir. 2002).

6              II.     Count One

7              Each defendant asserts that the evidence admitted at

8    trial was insufficient to support his or her conviction under 18

9    U.S.C. § 371 for defrauding the United States and obstructing the

10   Department of Justice and the Bureau of Prisons in the

11   administration and enforcement of the SAMs in force with respect

12   to Abdel Rahman.    Stewart also argues that the SAMs do not apply

13   to lawyers, and that the district court improperly prevented her

14   from challenging the underlying validity of the SAMs.

15   A. Sufficiency of the Evidence

16             In order to establish a conspiracy-to-defraud offense

17   under 18 U.S.C. § 371 as charged in Count One of the indictment,

18   a reasonable jury must have been able to conclude beyond a

19   reasonable doubt "(1) [that the defendants] entered into an

20   agreement (2) to obstruct a lawful function of the government [in

21   this case, the administration and enforcement of the SAMs] (3) by

22   deceitful or dishonest means and (4) at least one overt act in

23   furtherance of the conspiracy."    United States v. Ballistrea, 101

24   F.3d 827, 832 (2d Cir. 1996), cert. denied, 520 U.S. 1150 (1997)

25   (citation and internal quotation marks omitted).   "'Both the

26   existence of a conspiracy and a given defendant's participation

                                      -28-
1    in it with the requisite knowledge and criminal intent may be

2    established through circumstantial evidence.'"      United States v.

3    Huezo, 546 F.3d 174, 180 (2d Cir. 2008) (quoting United States v.

4    Stewart, 485 F.3d 666, 671 (2d Cir. 2007)) (alteration omitted).

5                1.   Evidence as to Stewart.   Stewart argues that her

6    defiance of the SAMs was open, not deceitful.      One aspect of her

7    defiance was undoubtedly public -- the conveyance of Abdel

8    Rahman's statements regarding the cease-fire and related matters

9    to the Reuters journalist.     But we agree with the district court

10   that "[a] reasonable jury could certainly [have found] that

11   Stewart gained access to Abdel Rahman [and thereby the

12   information that she conveyed to the journalist] by deceit and

13   dishonest means."     Sattar V, 395 F. Supp. 2d at 89.   "Without

14   [Stewart's] agreement to abide by the SAMs and the other

15   representations contained in her affirmations, she knew that she

16   would not have been allowed to visit Abdel Rahman," id.; see also

17   id. at 84-89, and therefore would not later have been able to

18   defy the regulations openly by publicizing messages on his

19   behalf.

20               Stewart insists that she acted with the intent, not to

21   defraud the government, but to "zealously" represent her

22   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: "1a. One who is zealous, especially
                                                        (continued...)

                                      -29-
1    disbelieve this, and to "disbelieve that zealous representation

2    included filing false affirmations, hiding from prison guards the

3    delivery of messages to Abdel Rahman, and the dissemination of

4    responses by him that were obtained through dishonesty."     Id. at

5    90.   Moreover, even if Stewart acted with an intent to represent

6    her client zealously, a rational jury could nonetheless have

7    concluded that Stewart simultaneously acted with an intent to

8    defraud the government.    A genuinely held intent to represent a

9    client "zealously" is not necessarily inconsistent with criminal

10   intent.

11               2. Evidence as to Yousry.   Yousry argues that, as a

12   translator who was taking direction from others, he did only what

13   he was told to do and acted in good-faith reliance on the

14   guidance and conduct of the members of the bar for whom he

15   worked.    Based on the evidence admitted at trial, however, a

16   rational jury could have found that Yousry knew of and understood

17   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.


                                     -30-
1              Yousry had in his possession the December 1999 version

2    of the SAMs as well as a copy of the underlying regulations.

3    That version of the SAMs provided that Abdel Rahman's legal team

4    could pass along to him "only inmate case-related

5    correspondence," and set forth a process for screening all non-

6    legal mail.   SAMs of Dec. 10, 1999, ¶ 7.    The SAMs in Yousry's

7    possession also specifically prohibited Abdel Rahman's

8    communication with news media "in person, by telephone, by

9    furnishing a recorded message, through the mails, through his

10   attorney(s), or otherwise."    Id. ¶ 9.   Yousry himself

11   acknowledged that members of the legal team were not "to disclose

12   any portion of their conversation with the Sheik to the media."

13   Excerpts from Draft of Dissertation of Mohammed Yousry at 29.

14   Yousry also knew that Clark and Jabara had refused to relay

15   messages from Abdel Rahman.

16             From this evidence, a reasonable factfinder could

17   conclude beyond a reasonable doubt that Yousry knew that his

18   assistance, by providing translation services, in facilitating

19   Abdel Rahman's continued contact with members of al-Gama'a

20   violated the SAMs.   Moreover, as with Stewart, Yousry's deceptive

21   and evasive conduct during the course of his visits to Abdel

22   Rahman undercuts his claim of good faith.

23             Yousry argues that the evidence established, at most,

24   that he intended to violate the SAMs, not that he knew that doing

25   so might constitute a crime.    But even if he misunderstood the

                                     -31-
1    law in that respect, such a mistake provides no defense to a

2    charge of criminal misbehavior.      See Cheek v. United States, 498

3    U.S. 192, 199 (1991).    The fact that Yousry was aware that his

4    acts, in knowing violation of the SAMs, would defraud the

5    government is sufficient to sustain the conviction.     The

6    government need not also prove that he knew that there was a

7    criminal statute -- 18 U.S.C. § 371 -- that criminalized such

8    behavior.    "The general rule that ignorance of the law or a

9    mistake of law is no defense to criminal prosecution is deeply

10   rooted in the American legal system."     Cheek, 498 U.S. at 199.

11   B. Propriety of the SAMs

12               1. Stewart's Argument.   Stewart contends that the

13   district court erred by preventing her from challenging the

14   validity of the SAMs as part of her defense.     She sought to argue

15   that the Attorney General has no authority to have lawyers held

16   criminally liable for violating the SAMs and that the SAMs are

17   unconstitutionally vague as applied to her.     Under Dennis v.

18   United States, 384 U.S. 855 (1966), however, Stewart's strategy

19   of collaterally attacking the validity of the SAMs is futile.

20               As the Supreme Court recognized in Dennis, there are

21   "appropriate and inappropriate ways to challenge acts of

22   government thought to be unconstitutional."     Id. at 867.   There

23   is "no reason for [federal courts] to consider the

24   constitutionality of a statute at the behest of petitioners who

25   have been indicted for conspiracy by means of falsehood and

                                     -32-
1    deceit to circumvent the law which they now seek to challenge."

2    Id. at 866.   Stewart, like the defendants in Dennis, was indicted

3    for engaging in a "voluntary, deliberate and calculated course of

4    fraud and deceit."   Id. at 867.   This is a "prosecution directed

5    at [Stewart's] fraud[,] not an action to enforce the [law]

6    claimed to be unconstitutional."   Id.11

7              The result may be different where the constitutionality

8    of a law is "challenged by those who of necessity violate its

9    provisions and seek relief in the courts," id. at 865, or where

10   the governmental action at issue was taken with no "colorable

11   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.

                                    -33-
1    1945).12   But, as with Dennis, "[t]his is not such a case."   384

2    U.S. at 865.

3               We have no basis upon which to entertain a doubt as to

4    the authority of the Attorney General of the United States to

5    ensure that reasonable measures are designed and implemented in

6    an attempt to prevent imprisoned criminals who are considered

7    dangerous despite their incarceration from engaging in or

8    facilitating further acts of criminality from their prison cells.

9    See 28 C.F.R. § 501.3(a) (setting forth the boundaries of that

10   authority).    Nor have we any reason to doubt the Attorney

11   General's conclusion that Abdel Rahman fits within that category


          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").

                                     -34-
1    of prisoner.   He has demonstrated his willingness to engage in

2    violent criminality not by acting violently himself, but by

3    ordering, encouraging, and conspiring with others who would

4    actually shed the blood.   The likelihood that he would continue

5    to order, direct, or encourage such acts from prison, if he

6    could, was plain, and his incapacitation reasonably required not

7    just his physical immobility, but also his virtual silence vis-à-

8    vis the world at large.

9              Stewart might have effectively challenged the SAMs by

10   refusing to sign the affirmations in which she said she would

11   abide by them.   She might then have invoked the jurisdiction of

12   the courts by bringing suit on Abdel Rahman's or her own behalf

13   to challenge their validity.   She might have argued -- as she

14   forcefully does here -- that the SAMs interfered with her

15   capacity to effectively represent Rahman.   But she did not.

16   Instead, she signed the affirmations.   Having chosen that path,

17   she cannot be heard to attack the validity of those measures when

18   called to account for violating them, especially where, as here,

19   her fraudulent and deceptive conduct endangered people's lives.

20              The district court did not err in preventing Stewart

21   from challenging the validity of the SAMs as part of her defense,

22   and the jury acted within its province when it found that Stewart

23   intentionally and fraudulently subverted them.

24             2. Sattar's Related Arguments on Appeal.   Sattar relies

25   on Stewart's and Yousry's arguments with respect to Count One.

                                    -35-
1    For the reasons set forth above addressing those arguments, we

2    conclude that they are also unpersuasive as applied to him.

3              III.    Counts Two and Three

4              Only Sattar was charged in Counts Two and Three of the

5    superseding indictment.    He does not challenge the sufficiency of

6    the evidence supporting his Count Two conviction for conspiring

7    with Abdel Rahman, Taha, and others to murder persons in a

8    foreign country, in violation of 18 U.S.C. § 956.13   Instead, he

9    asserts that the district court should have dismissed this count

10   on the grounds of vindictive prosecution.    Similarly, Sattar does

11   not challenge his conviction on Count Three for soliciting

12   persons to engage in crimes of violence -- murder and conspiracy

13   to commit murder -- in violation of 18 U.S.C. § 373.14    He argues

14   instead that he was denied a fair trial.    These arguments are

15   addressed below in the context of the defendants' more general

16   challenges to the probity of the proceedings.

17             IV.    Counts Four and Five

18             Stewart and Yousry challenge their Count Five

19   convictions for violating 18 U.S.C. § 2339A and 18 U.S.C. § 2 by

20   providing and concealing material support for the Count-Two

21   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.

                                     -36-
1    convictions for conspiracy to provide and conceal such support,

2    in violation of 18 U.S.C. § 371.     They argue that the evidence

3    was insufficient to support their conviction on either count, and

4    contend that their conduct was constitutionally protected in any

5    event.

6    A. History of the Charges

7                 By way of background, the initial indictment charged

8    all three defendants with violating 18 U.S.C. § 2339B.15     The

9    defendants argued before the district court that "18 U.S.C.

10   § 2339B is unconstitutionally vague . . . with regard to the

11   statute's prohibition on providing material support or resources

12   in the form of communications equipment and personnel."     Sattar

13   I, 272 F. Supp. 2d at 356 (internal quotation marks omitted).

14   The district court agreed, and therefore dismissed those charges.

15   Id. at 361.16

16                The government then filed a superseding indictment

17   alleging that by essentially the same course of conduct, i.e.,

18   coordinating the surreptitious passage of al-Gama'a messages to

19   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.

                                       -37-
1    § 2339A.17    The relevant version of section 2339A, entitled

2    "Providing material support to terrorists," provided in relevant

3    part:

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

17   18 U.S.C. § 2339A(a) (2000).     For purposes of both sections 2339A

18   and 2339B, "material support or resources" may be provided in the

19   form of:

20                currency or other financial securities,
21                financial services, lodging, training,
22                safehouses, false documentation or
23                identification, communications equipment,
24                facilities, weapons, lethal substances,
25                explosives, personnel, transportation, and
26                other physical assets, except medicine or
27                religious materials.

28   18 U.S.C. § 2339A(b)(1) (2000); see also id. § 2339B(g)(4) (2000)

29   ("[T]he term 'material support or resources' has the same meaning

30   given that term in section 2339A . . . .").     Section 2339A,

31   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.

                                      -38-
1    provision of material support without regard to what the support

2    is for.    Section 2339A requires instead that the defendant

3    provide support or resources with the knowledge or intent that

4    such resources be used to commit specific violent crimes.18

5               The government charged that the defendants provided

6    "material support or resources" in the form of "personnel" --

7    namely, Abdel Rahman -- to the Count-Two conspiracy, knowing or

8    intending that Abdel Rahman, as an active co-conspirator, would

9    help commit crimes.    See Sattar III, 314 F. Supp. 2d at 296.   The

10   government further asserted that Stewart and Yousry "conceal[ed]

11   and disguise[d] the nature, location, and source" of their

12   material support by means of the defendants' covert conduct

13   disguising Abdel Rahman's participation as a co-conspirator.     See

14   id.   The government had initially argued that Stewart and Yousry

15   could be convicted for providing themselves as "personnel" to a

16   foreign terrorist organization and by providing communications

17   equipment to the conspiracy.    After the dismissal of the section

18   2339B charges and following the filing of the superseding

19   indictment, however, the government abandoned those contentions.

20   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.

                                     -39-
1                As an initial matter, Stewart and Yousry challenge the

2    sufficiency of the evidence supporting their convictions on this

3    count.    They also argue that the district court erroneously

4    instructed the jury on the elements of a violation of section

5    2339A.    In addition, they raise more general challenges to the

6    statute, arguing that section 2339A does not criminalize the

7    behavior alleged in the indictment, that the provision is

8    unconstitutional as a multi-level inchoate offense, and that the

9    statute is unconstitutionally vague as applied to them.      We

10   examine their arguments in the context of the statutory elements

11   of the crime, addressing first the sufficiency arguments.

12   B. Elements of Section 2339A
13
14               1. Proof of the Underlying Conspiracy to Kill Persons

15   Abroad.19   There was sufficient evidence of the existence of the

16   predicate crime -- the Count-Two conspiracy to kill or kidnap --

17   for which Sattar was convicted.    Indeed Sattar, the only

18   defendant charged with and convicted of participating in the

19   Count-Two conspiracy, does not challenge the sufficiency of the

20   evidence as to this count.

21               The government offered evidence that Sattar and Taha

22   composed a fatwa in Abdel Rahman's name calling for "the killing

23   [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.

                                     -40-
1    found."   Audio Tr. Oct. 4, at 15.     It also offered proof that

2    this fatwa was communicated to Atia, an al-Gama'a military

3    leader.   Although the evidence may not have established any

4    particular plan of action to execute the fatwa, a reasonable jury

5    could have found beyond a reasonable doubt from the fatwa's

6    exhortations and Atia's readiness to act on it that there was a

7    concrete, illegal objective to murder persons abroad.

8                A review of the transcripts of various intercepted

9    telephone conversations introduced into evidence, particularly

10   the September 18, 2000, conversation involving Sattar, Taha, and

11   another party, bolsters this conclusion.      The discussion goes

12   well beyond the abstract and contemplates the coordination with

13   Atia of violent actions, presumably along the lines of the Luxor

14   massacre.    In light of such evidence, a rational jury could have

15   found beyond a reasonable doubt that the conspiracy as charged in

16   Count Two existed.

17               2. Proof of Material Support to the Conspiracy.

18   Stewart and Yousry also assert that they did not provide material

19   support in the form of "personnel" to the Count-Two conspiracy.

20   A reasonable jury could have concluded otherwise.      There was

21   evidence introduced at trial sufficient to support a reasonable

22   juror's inference that Stewart and Yousry helped Abdel Rahman

23   participate covertly in the conspiracy to engage in violence

24   abroad by communicating to members of al-Gama'a and others his

25   withdrawal of support for the cease-fire.      Abdel Rahman's

                                     -41-
1    instrumental participation -- indeed, his leadership -- would, as

2    the district court observed, have been unavailable to the Count-

3    Two conspiracy "without the active participation of Stewart and

4    Yousry."   Sattar V, 395 F. Supp. 2d at 95.

5               The defendants argue that the government established

6    only that they provided the underlying conspiracy with Abdel

7    Rahman's "pure speech" and therefore did not provide "personnel"

8    within any constitutional interpretation of section 2339A.   The

9    government does not deny that section 2339A may not be used to

10   prosecute mere advocacy or other protected speech, but contends

11   that the defendants were prosecuted for criminal actions that did

12   not amount to protected speech.

13              Resolution of this dispute does not turn on whether the

14   prosecution introduced evidence of "pure speech."   "Numerous

15   crimes under the federal criminal code are, or can be, committed

16   by speech alone," and certain crimes "are characteristically

17   committed through speech."   Rahman, 189 F.3d at 117.   The issue

18   is, instead, whether Abdel Rahman's statements were protected

19   speech.    We conclude that the statements were not protected such

20   as to cast doubt on the convictions.

21              Words that are "the very vehicle of [a] crime" are not

22   protected "merely because, in part, [the crimes] may have

23   involved the use of language."    United States v. Rowlee, 899 F.2d

24   1275, 1278 (2d Cir.), cert. denied, 498 U.S. 828 (1990).    As we

25   recognized when affirming Abdel Rahman's sentence, "freedom of



                                      -42-
1    speech and of religion do not extend so far as to bar prosecution

2    of one who uses a public speech or a religious ministry to commit

3    crimes."    Abdel Rahman, 189 F.3d at 116-17.   "[I]f the evidence

4    shows that the speeches crossed the line into criminal

5    solicitation, procurement of criminal activity, or conspiracy to

6    violate the laws, the prosecution is permissible."    Id. at 117.

7    Words "that instruct, solicit, or persuade others to commit

8    crimes of violence . . . violate the law and may be properly

9    prosecuted regardless of whether they are uttered in private, or

10   in a public speech, or in administering the duties of a religious

11   ministry."    Id.

12               The dissemination of some of the speech introduced at

13   trial might be viewed as nothing more than the expression of

14   views on the broad political situation in Egypt.    For example, in

15   reaffirming that he was withdrawing his support for the cease-

16   fire, Abdel Rahman said that he had "expressed [his] opinion and

17   left the matters to [his] brothers to examine it and study it."

18   Statement for Release, Abdel Rahman, June 20, 2000.

19               But a reasonable jury could have found, in light of

20   Abdel Rahman's role as "spiritual" leader of al-Gama'a, that his

21   messages were ultimately intended to sway al-Gama'a members to

22   end the cease-fire, and by implication to commit criminal acts of

23   violence.    Abdel Rahman's statements were therefore not an

24   expression of opinion, but a call to arms.




                                     -43-
1              The evidence establishes, moreover, more than a one-way

2    broadcast of Abdel Rahman's views.    Abdel Rahman's comments were

3    made in direct response to solicitations of his views from other

4    al-Gama'a members who were seeking to effect an end to the cease-

5    fire and to resume violence.   In light of the information

6    available to Abdel Rahman at the time, a reasonable jury could

7    have read his statements as tailored to and necessary for

8    al-Gama'a's operations and increased use of violence.   Viewed

9    through this lens, Abdel Rahman's statements were not materially

10   different in substance from a crime boss making decisions about

11   his criminal enterprise from prison and ordering a "hit."

12             3. Proof Regarding Knowing or Intentional Provision of

13   Material Support.   Stewart and Yousry argue that the prosecution

14   did not prove the requisite mental state to sustain their

15   convictions.   They contend that they were not aware of the

16   existence of the conspiracy charged in Count Two and therefore

17   could not have intended to aid it.

18             These arguments are unavailing.   From the evidence at

19   trial, a reasonable factfinder could have concluded that Stewart

20   and Yousry knew (1) that an active group of people within

21   al-Gama'a including, most notably, Taha, sought to commit violent

22   crimes but were hindered by the cease-fire and by those members

23   of al-Gama'a who sought to adhere to it; (2) that the support of

24   Abdel Rahman -- a key leader of the group -- was critical to the

25   continued maintenance of the cease-fire; and (3) that, in light



                                    -44-
1    of the letters and messages from Taha and Sattar that Yousry read

2    to Abdel Rahman in prison, Abdel Rahman's particular opinion

3    regarding the cease-fire -- and not the view of any other person

4    -- would be dispositive on the question of whether al-Gama'a

5    members would continue to abide by the cease-fire.   A reasonable

6    factfinder could thus have concluded that Yousry and Stewart

7    actively and intentionally facilitated communications between

8    Abdel Rahman and al-Gama'a, in part by engaging in various ruses

9    during the course of their visits to Abdel Rahman, and thereby

10   effectively delivered Abdel Rahman's order to commit violence.

11   Stewart also did so by reaffirming to the press Abdel Rahman's

12   stated withdrawal of support for the cease-fire, thereby

13   dispelling any notion that the message came not from Abdel Rahman

14   himself, but was instead fabricated by members of the pro-

15   violence faction of al-Gama'a.

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

17             1. Vagueness.   Section 2339A criminalizes the provision

18   of material support or resources "knowing or intending" that they

19   are to be used to assist in certain enumerated crimes of

20   terrorism.   18 U.S.C. § 2339A(a) (full text set forth on page

21   [38], supra).   Stewart and Yousry assert that insofar as the

22   statute does not require "conscious, knowing intent" or

23   "knowledge and intent," the statute is unconstitutionally vague

24   as applied to them.   They argue that the district court should

25   have dismissed the section 2339A charges for substantially the



                                      -45-
1    same reasons that it dismissed the section 2339B charges that

2    were contained in the initial indictment.    The government urges

3    to the contrary that the text of section 2339A, which requires

4    "knowing or intending," 18 U.S.C. § 2339A(a) (emphasis added), is

5    sufficiently precise.

6                In analyzing the defendants' arguments in this regard,

7    we must focus on two major differences between the initial and

8    superseding indictment.

9                First, the statutes upon which they were based differ.

10   Unlike section 2339A, section 2339B penalizes the knowing

11   provision of material support alone.    Unlike section 2339A,

12   section 2339B does not require for conviction proof that the

13   defendant has provided support or resources with the knowledge or

14   intent that such resources be used to commit specific violent

15   crimes.20

16               Second, the factual bases for the charges differ.   In

17   the initial indictment, the government alleged that the

18   defendants violated section 2339B by the "provision" of

19   "communications equipment" to the conspiracy, Sattar I, 272 F.

20   Supp. 2d at 357, and the "provision" of themselves as "personnel"

21   to the conspiracy, id. at 358.    In the superseding indictment,

22   the government charged instead that the defendants acted with the

23   "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.
                                      -46-
1    than proceeding on the theory that the defendants provided

2    themselves as "personnel" to the conspiracy, the superseding

3    indictment alleges that the defendants provided Abdel Rahman as

4    the "personnel."

5              As we have explained, the district court dismissed the

6    section 2339B charges on the ground that they were

7    unconstitutional as applied to the defendants.      The basis for

8    dismissal of the "communications equipment" charges was that the

9    statute, as read to apply to the facts of this case, could

10   "criminaliz[e] the mere use of phones and other means of

11   communication [with] neither notice nor standards for [the

12   statute's] application."      Id.   And the basis for the dismissal of

13   the "personnel" charges, as framed in the initial indictment, was

14   that such a charge could criminalize the actions of "'[s]omeone

15   who advocates the cause of the [Foreign Terrorist

16   Organization].'"    Id. at 359 (quoting Humanitarian Law Project v.

17   Reno, 205 F.3d 1130, 1137 (9th Cir. 2000), cert. denied, 532 U.S.

18   904 (2001)) (brackets omitted).       Without more, the district court

19   concluded, such conduct cannot be punished without violating the

20   First Amendment.    See id.

21             The initial charges raised the possibility, moreover,

22   that under the government's reading of the statute, "a lawyer,

23   acting as an agent of her client, an alleged leader of an FTO,

24   could [be] subject to criminal prosecution as a 'quasi-

25   employee.'"   Id.   As we shall see, the charges in the superseding

26   indictment do not pose this risk.

                                         -47-
1               A statute is unconstitutionally vague as applied "if it

2    fails to provide people of ordinary intelligence a reasonable

3    opportunity to understand what conduct it prohibits" or "if it

4    authorizes or even encourages arbitrary and discriminatory

5    enforcement."   Hill v. Colorado, 530 U.S. 703, 732 (2000); accord

6    United States v. Rybicki, 354 F.3d 124, 132 (2d Cir. 2003) (en

7    banc), cert. denied, 543 U.S. 809 (2004).   As a general matter,

8    scienter requirements may "ameliorate[]" concerns of improper

9    notice.   See Hill, 530 U.S. at 732.

10              We are satisfied that section 2339A's knowledge-or-

11   intent formulation saves the statute from being

12   unconstitutionally vague as applied here.   Unlike the application

13   of section 2339B proposed in the initial indictment, the

14   superseding indictment required the jury to find that the

15   defendants knew or intended the criminal uses to which the

16   conspiracy would put the material support they provided, thereby

17   eliminating concerns about inadequate notice.   In other words, if

18   Stewart and Yousry knew that their actions provided material

19   support to a conspiracy to end the cease-fire and thereby unloose

20   deadly acts of terrorism by al-Gama'a and others, then they were

21   on notice that what they were doing was prohibited by a statute

22   that criminalizes the provision of material support "knowing or

23   intending that [such support is] to be used in preparation for,

24   or in carrying out," criminal actions.   18 U.S.C. § 2339A.

25              Stewart and Yousry argue nonetheless that several

26   statutory terms, such as "personnel," are unconstitutionally

                                    -48-
1    vague as applied to them.    They note that "personnel," undefined

2    at the relevant time, applies equally to sections 2339A and

3    2339B, compare id. § 2339A(b)(1) (2000) with id. § 2339B(g)(4)

4    (2000).21   They point out that the district court held this term

5    to be unconstitutionally vague in Sattar I.      See 272 F. Supp. 2d

6    at 360.

7                We agree, however, with the district court's conclusion

8    that "[t]he meaning of 'personnel' is clear in the context of

9    § 2339A when applied to personnel who are to be used in

10   preparation for, or in carrying out, specific crimes."      Sattar

11   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.
                                     -49-
1    indictment, the prohibition against providing "personnel" to the

2    conspiracy to a circumstance in which the defendants provided

3    themselves, the government created a situation in which the

4    defendants could be punished for, in effect, providing themselves

5    to speak out in support of the program or principles of a foreign

6    terrorist organization, an activity protected by the First

7    Amendment.    See Sattar I, 272 F. Supp. 2d at 359.   The more

8    limited charge that they knowingly or intentionally provided

9    Abdel Rahman (as "personnel"), whose voice of command or words of

10   approbation were a means by which al-Gama'a members could prepare

11   for, or carry out, terrorist acts in Egypt, does not carry the

12   same risk with its corresponding constitutional implications.

13             In addition, the heightened scienter requirement in

14   section 2339A constrains prosecutorial discretion, and

15   ameliorates concerns of arbitrary and discriminatory enforcement.

16   Similar scienter requirements have saved other statutes from

17   void-for-vagueness challenges.    See, e.g., Hill, 530 U.S. at 732;

18   see also Colautti v. Franklin, 439 U.S. 379, 395 & n.13 (1979)

19   (citing cases); United States v. Curcio, 712 F.2d 1532, 1543 (2d

20   Cir. 1983).

21             2. Nature of the Offense.     Stewart and Yousry also

22   contend that Count Four, alleging a conspiracy to violate section

23   2339A, acts impermissibly as a charge of a "multi-level inchoate

24   offense," a "logical absurdity" that "violate[s] due process."

25   Stewart Br. 161-65.    The gist of their argument is that the

26   charge effectively criminalizes a "conspiracy to conspire,"

                                      -50-
1    thereby violating due process by extending criminal liability to

2    a degree too remote from any substantive criminal offense to pass

3    constitutional muster.   Id. at 165-69.   We need not consider this

4    argument;22 Count Five charges the knowing provision of aid -- a

5    substantive, not inchoate, offense -- and Count Four, pursuing a

6    conspiracy to commit that substantive offense, functions as a

7    traditional conspiracy charge.

8               As what seems to us to be a variation on the same

9    theme, Stewart and Yousry assert that the district court erred by

10   "impermissibly dilut[ing]" the proof required for conviction of

11   the Count-Two conspiracy in the context of the material support

12   convictions under section 2339A.    Stewart Br. 158.   But the

13   government need not have established beyond a reasonable doubt

14   that Stewart or Yousry engaged in a conspiracy to kidnap or

15   commit murder abroad; neither was charged with doing either.

16   Instead, both were charged with and convicted of violating

17   section 2339A, and, as discussed, the evidence is sufficient to

18   sustain the conviction on those charges.    Stewart and Yousry do

19   not, presumably because they cannot, suggest that Congress did

20   not have the power to criminalize the relevant underlying

21   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.
                                      -51-
1               V. Counts Six and Seven

2               Stewart challenges her convictions on Counts Six and

3    Seven for violating the blanket provisions of 18 U.S.C. § 1001,

4    which subjects to criminal sanctions

5               whoever, in any matter within the
6               jurisdiction of the executive, legislative,
7               or judicial branch of the Government of the
8               United States, knowingly and willfully--
 9                   (1) falsifies, conceals, or covers up by
10              any trick, scheme, or device a material fact;
11                   (2) makes any materially false,
12              fictitious, or fraudulent statement or
13              representation; or
14                   (3) makes or uses any false writing or
15              document knowing the same to contain any
16              materially false, fictitious, or fraudulent
17              statement or entry. . . .
18   18 U.S.C. § 1001(a).   Stewart argues that, at worst, she broke a

19   promise, and that the statute criminalizes false statements, not

20   false promises.

21              We conclude otherwise.    On May 16, 2000, Stewart signed

22   an affirmation stating that she would ("shall") abide by the

23   SAMs.   On May 26, 2000, Stewart submitted the affirmation to the

24   United States Attorney's Office for the Southern District of New

25   York.   On May 7, 2001, Stewart signed a revised affirmation to

26   the same effect and telecopied it to the same office.    Before,

27   after, and between executing these affirmations, she helped

28   smuggle messages to and from Abdel Rahman in violation of the

29   SAMs.




                                    -52-
1               Stewart at least thrice affirmed "under the penalties

2    of perjury the truth" of certain statements.    The May 16, 2000,

3    statement reads in pertinent part:

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

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

13   statement, Stewart affirmed:

14              I . . . specifically understand that the
15              meetings shall not be for the purpose of
16              presenting statements to the defense team for
17              further dissemination to third parties,
18              including the media. I will only allow the
19              meetings to be used for legal discussion
20              between Abdel Rahman and me.
21
22   Stewart May 2001 Aff. (Gov't Ex. 12.)

23              A reasonable factfinder was entitled to conclude that

24   Stewart affirmed under penalty of perjury that she had the then-

25   present intent to have her actions conform to the terms of the

26   SAMs.   From Stewart's smuggling messages to and from Abdel

27   Rahman, the factfinder could conclude that the assertion about

28   her intent was knowingly and willfully false when it was made.

29   See United States v. Urum, 148 F.2d 187, 189 (2d Cir. 1945)

30   (concluding that allegation of a false representation as to

31   future use of loan proceeds was "an allegation of a present

32   statement and the assertion of existing intent"); cf. United

33   States v. Shah, 44 F.3d 285, 294 (5th Cir. 1995) (observing that


                                    -53-
1    "a promise may amount to a 'false, fictitious or fraudulent'

2    statement if it is made without any present intention of

3    performance and under circumstances such that it plainly, albeit

4    implicitly, represents the present existence of an intent to

5    perform").

6                Stewart seeks support for her argument from Williams v.

7    United States, 458 U.S. 279 (1982).    There, the Supreme Court

8    reversed a conviction of the defendant under 18 U.S.C. § 1014 for

9    his making of a "false statement" -- a check drawn on an account

10   containing insufficient funds -- for the purpose of influencing

11   the actions of a federally insured institution.    But central to

12   the Williams Court's analysis was the proposition that a check,

13   even a bad check, "is not a factual assertion at all."    Id. at

14   284.    A check "d[oes] not, in terms, make any representation as

15   to the state of [the drawer's] bank balance" but "serve[s] only

16   to direct the drawee banks to pay the face amounts to the bearer,

17   while committing [the drawer] to make good the obligations if the

18   banks dishonor[] the drafts."    Id. at 284-85.

19               Williams does not apply to the conduct at issue here.

20   A reasonable jury could have concluded that Stewart's

21   affirmations that she would abide by the SAMs amounted to factual

22   assertions regarding her then-present intent to abide by the

23   SAMs.    Based on her repeated affirmations, and her repeated

24   violations of those affirmations, moreover, a reasonable jury

25   could have concluded that at the time Stewart executed and

26   submitted the affirmations at issue, she did not intend to abide

                                     -54-
1    by them -- in other words, that her representations were

2    knowingly false when made.    On this basis, a reasonable jury

3    could have properly concluded that Stewart violated section 1001

4    as charged in Counts Six and Seven.

5               VI.   General Challenges to the
6                     Validity of the Convictions

7               In addition to their challenges to specific counts in

8    the indictment, Stewart and Sattar make general assertions of

9    error regarding the government's conduct during the course of the

10   prosecution.     Stewart argues that she was selectively prosecuted

11   on account of her gender and political beliefs, and both Stewart

12   and Sattar assert that the government's decision to file a

13   superseding indictment following their successful efforts to

14   dismiss several counts of the initial indictment constitutes

15   vindictive prosecution.

16              The defendants also raise various challenges to the

17   district court's case administration.    First, they allege a

18   variety of pretrial errors: in the denial of their motions to

19   sever their trial from Sattar's; in the empaneling of an

20   anonymous jury; in the denial of Stewart's motion to suppress

21   certain evidence obtained pursuant to the Foreign Intelligence

22   Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783, 50

23   U.S.C. §§ 1801 et seq. ("FISA"); and in the denial of Stewart's

24   motion for disclosure of whether she, her co-defendants, or

25   others were subject to surveillance by the National Security

26   Agency.   The defendants also argue that the district court made


                                      -55-
1    various evidentiary errors.     Finally, the defendants argue that

2    the district court erred in addressing post-conviction claims of

3    juror misconduct.

4    A.   Selective Prosecution

5               Stewart argues that she was selectively prosecuted on

6    account of her gender and political beliefs in violation of the

7    Equal Protection Clause of the Fourteenth Amendment.     This

8    argument requires Stewart to establish that she was "treated

9    differently from other similarly situated individuals" and that

10   "such differential treatment was based on impermissible

11   considerations such as race, religion, intent to inhibit or

12   punish the exercise of constitutional rights, or malicious or bad

13   faith intent to injure [her]."     Harlen Assocs. v. Inc. Vill. of

14   Mineola, 273 F.3d 494, 499 (2d Cir. 2001) (internal quotation

15   marks omitted); accord United States v. Fares, 978 F.2d 52, 59

16   (2d Cir. 1992); United States v. Moon, 718 F.2d 1210, 1229 (2d

17   Cir. 1983), cert. denied, 466 U.S. 971 (1984).

18              Stewart compares her treatment with that of Abdel

19   Rahman's former lawyers Ramsey Clark and Abdeen Jabara, who, even

20   though they allegedly violated the same SAMs as she did, were not

21   prosecuted for doing so.     Clark's and Jabara's alleged

22   misconduct, however, was different from Stewart's adjudicated

23   misconduct in at least one crucial respect: both Clark and Jabara

24   refused to publicize Abdel Rahman's withdrawal of support for the

25   al-Gama'a cease-fire, something Stewart did at least twice.     Like

26   Stewart, Clark spoke to the media on Abdel Rahman's behalf.     But

                                      -56-
1    unlike Stewart, the message Clark disseminated in apparent

2    violation of the SAMs -- that Abdel Rahman did not support the

3    formation of a political party in Egypt -- did not have the same

4    potential for inciting violence.   For that reason and those set

5    forth by the district court in its decisions addressing the

6    matter, see Sattar V, 395 F. Supp. 2d at 103 (denying selective

7    prosecution claim), cf. Sattar III, 314 F. Supp. 2d at 311-14

8    (denying vindictive prosecution claim), and Order, Sept. 1, 2004

9    (denying selective prosecution claim), Stewart's arguments in

10   this regard are without merit.23

11   B. Vindictive Prosecution

12             Sattar argues that the district court erred in denying

13   his motion to dismiss the Count-Two conspiracy charge in the

14   superseding indictment because the institution of the charge was

15   driven by prosecutorial vindictiveness.   This argument is also

16   without merit.

17             The government filed the original five-count indictment

18   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...)
                                    -57-
1    were charged with providing, attempting to provide, and

2    conspiring to provide, material support and resources to an FTO

3    in violation of 18 U.S.C. § 2339B.    Sattar moved to dismiss these

4    charges on the ground that section 2339B was unconstitutionally

5    vague as applied to the allegations in the indictment.    By

6    opinion and order dated July 22, 2003, the district court agreed

7    with Sattar.   Sattar I, 272 F. Supp. 2d at 358-61.   Following

8    that decision, the government filed a superseding indictment

9    adding a new count charging Sattar with conspiring to murder

10   persons in a foreign country in violation of 18 U.S.C. § 956.

11              Sattar argues that the government's decision to file

12   the superseding indictment and add the charge of violating

13   section 956 "was a retaliatory act . . . motivated by the

14   embarrassment [the government] suffered as a result of the

15   dismissal" of two central counts in the original indictment.

16   Sattar Br. 17.   He asserts that an inference of vindictive

17   prosecution is supportable in two ways:   First, the addition of

18   Count Two -- which carries a potential sentence of life

19   imprisonment, a longer sentence than that authorized by the

20   dismissed charge pursuant to section 2339B -- "up[ped] the ante"

21   for the consequences of conviction.   Sattar III, 314 F. Supp. 2d

22   at 311.   Second, the government could have brought the section

23   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.
                                   -58-
1    on information known to the government prior to the filing of the

2    initial indictment, but the government declined to do so.

3              "[T]he decision as to whether to prosecute generally

4    rests within the broad discretion of the prosecutor, and a

5    prosecutor's pretrial charging decision is presumed legitimate."

6    United States v. Sanders, 211 F.3d 711, 716 (2d Cir.), cert.

7    denied, 531 U.S. 1015 (2000) (citations and internal quotation

8    marks omitted).   Nonetheless, "a prosecution brought with

9    vindictive motive, penalizing those who choose to exercise

10   constitutional rights, would be patently unconstitutional."    Id.

11   (internal quotation marks omitted).    We will dismiss an

12   indictment if actual vindictiveness has been demonstrated, or if,

13   under the circumstances, "there is a presumption of

14   vindictiveness that has not been rebutted by objective evidence

15   justifying the prosecutor's action."    Id. (internal quotation

16   marks omitted).

17             We review a district court's factual findings on

18   prosecutorial vindictiveness for clear error, and its legal

19   conclusions de novo.   United States v. Johnson, 171 F.3d 139, 140

20   (2d Cir. 1999) (per curiam).   We review a district court's

21   decision denying discovery on claims of prosecutorial

22   vindictiveness for abuse of discretion.    Sanders, 211 F.3d at

23   717.

24             "Th[e] need to avoid the appearance of vindictiveness

25   has taken the form of a presumption of prosecutorial

26   vindictiveness . . . , applied when (but only when) the

                                    -59-
1    circumstances of a case pose a "realistic likelihood" of such

2    vindictiveness.    United States v. King, 126 F.3d 394, 397 (2d

3    Cir. 1997) (citations and internal quotation marks omitted).      The

4    district court found no reason to presume that the actions at

5    issue, which arose in a pretrial setting, were vindictive.      See

6    Sattar III, 314 F. Supp. 2d at 311-12.

7                "The circumstances must present a realistic likelihood

8    of vindictiveness that would be applicable in all cases, and any

9    such presumption may be overcome by objective evidence justifying

10   the prosecutor's action."    Sanders, 211 F.3d at 717 (citations

11   and internal quotation marks omitted).    "[T]his court has

12   consistently adhered to the principle that the presumption of

13   prosecutorial vindictiveness does not exist in a pretrial

14   setting."    Paradise v. CCI Warden, 136 F.3d 331, 335 (2d Cir.),

15   cert. denied, 525 U.S. 836 (1998) (internal quotation marks

16   omitted); see also Sanders, 211 F.3d at 717 (same).    Sattar

17   provides no reason for us to deviate from this general rule here,

18   and no basis upon which we can conclude that the district court's

19   findings in this respect were clearly erroneous.

20               Sattar's claim of actual, as opposed to presumptive,

21   vindictiveness is also without merit.    A finding of actual

22   vindictiveness requires a showing that a "prosecutor's charging

23   decision [is] a 'direct and unjustifiable penalty,' that resulted

24   'solely from the defendant's exercise of a protected legal

25   right.'"    Sanders, 211 F.3d at 716-17 (internal citation

26   omitted).    The evidence Sattar offers in this regard is that the

                                     -60-
1    government possessed the same information when preparing the

2    original and superseding indictments, that the maximum punishment

3    Sattar faced if convicted under the superseding indictment was

4    greater than that he faced if convicted under the original

5    indictment, and that the superseding indictment was the result of

6    the district court's dismissal of the section 2339B material

7    support charges in the original indictment.   We have no warrant

8    to conclude that the district court clearly erred in finding that

9    the charging decision was not vindictive, or that the government

10   was attempting to do anything more than hold Sattar criminally

11   responsible for engaging in the underlying acts that form the

12   basis of the indictment.   See Paradise, 136 F.3d at 336.   Put

13   another way, it does not follow from the facts Sattar recites

14   that the resulting charge was necessarily brought vindictively;

15   for this reason the district court did not err in concluding

16   otherwise.

17   C. Trial Administration

18             1. Alleged Pre-Trial Errors

19             a. Severance

20             Stewart and Yousry assert that the district court

21   abused its discretion by denying their motions to sever their

22   trial from the trial of Sattar because Sattar was charged with,

23   and convicted of, conspiracy to murder persons in a foreign

24   country -- allegations different from and more serious than those

25   with which Stewart and Yousry were charged.   To succeed on this

26   argument, Stewart and Yousry must show that the district court
                                    -61-
1    abused its discretion in this regard and that the resulting

2    prejudice rose to the level of "a miscarriage of justice."     See

3    United States v. Yousef, 327 F.3d 56, 150 (2d Cir. 2003).

4    Stewart and Yousry complain primarily that as a result of the

5    district court's denial of their motion for severance, evidence

6    irrelevant to their actions and unfairly prejudicial to their

7    case permeated the trial.   They further contend that the volume

8    of limiting instructions given to the jury rendered them

9    effectively useless in attempting to curb any prejudicial effect.

10             But the district court did not abuse its discretion in

11   this respect.   Count Two charged Sattar with conspiring to murder

12   persons in a foreign country.   Count Five charged Stewart and

13   Yousry with providing and concealing material support to that

14   conspiracy, and Count Four charged them with conspiring to

15   provide and conceal that support.      Most of the evidence against

16   Sattar that Stewart and Yousry assert to have been unduly

17   prejudicial to them -- evidence submitted to establish the

18   existence of the Count-Two conspiracy charge against Sattar --

19   would have been admissible against Stewart and Yousry even had

20   the trial been severed.   See Sattar I, 272 F. Supp. 2d at 380-81.

21   This is so because the Count-Two conspiracy was an element of the

22   crimes charged against Stewart and Yousry in Counts Four and

23   Five, and the government would have been entitled, and expected,

24   to elicit relevant evidence regarding its existence.     "[T]he fact

25   that testimony against a codefendant may be harmful is not a

26   ground for severance if that testimony would also be admissible

                                     -62-
1    against the moving defendant tried separately."    United States v.

2    Rosa, 11 F.3d 315, 341 (2d Cir. 1993), cert. denied, 511 U.S.

3    1042 (1994).

4                To the extent that evidence introduced at trial was not

5    admissible against a particular defendant, the district court

6    gave detailed -- if necessarily voluminous -- curative

7    instructions to the jury.    Neither Stewart nor Yousry proffer

8    instructions that should have been given, but were not.      Nor do

9    they identify improper curative instructions that were given.

10   This is not a case where "the risk that the jury [would] not, or

11   [could] not, follow instructions [was] so great, and the

12   consequences of failure so vital to the defendant, that the

13   practical and human limitations of the jury system [could not] be

14   ignored."    Bruton v. United States, 391 U.S. 123, 135 (1968).

15   Despite the length of the instructions, we presume, as did the

16   district court, see Sattar V, 395 F. Supp. 2d. at 104, that the

17   jurors followed them, see, e.g., Richardson v. Marsh, 481 U.S.

18   200, 206 (1987) (noting that it is an "almost invariable

19   assumption of the law that jurors follow their instructions");

20   United States v. Salameh, 152 F.3d 88, 116 (2d Cir. 1998), cert.

21   denied, 525 U.S. 1112 (1999) ("Juries are presumed to follow

22   their instructions."    (internal quotation marks and brackets

23   omitted)).    Neither Stewart nor Yousry provide us with a

24   convincing reason to conclude that the district court abused its

25   discretion in this regard.



                                     -63-
1               b. Empaneling an Anonymous Jury

2               By order dated April 29, 2004, the district court

3    granted the government's motion to empanel an anonymous jury, in

4    light of the substantial publicity surrounding the case and the

5    seriousness and nature of the charges in the indictment,

6    especially the charge that the defendants had attempted "to

7    interfere with the ordered procedures of law enforcement and the

8    judicial process."   Order, Apr. 29, 2004.   As a general rule, a

9    district court may order the empaneling of an anonymous jury upon

10   "(a) concluding that there is strong reason to believe the jury

11   needs protection, and (b) taking reasonable precautions to

12   minimize any prejudicial effects on the defendant and to ensure

13   that his fundamental rights are protected."   United States v.

14   Paccione, 949 F.2d 1183, 1192 (2d Cir. 1991), cert. denied, 505

15   U.S. 1220 (1992).    A defendant's apparent "willingness to tamper

16   with the judicial process" will support the use of an anonymous

17   panel.   United States v. Aulicino, 44 F.3d 1102, 1116 (2d Cir.

18   1995) (internal quotation marks and ellipses omitted).     Where

19   otherwise warranted,

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

28   Id.   If "there is evidence to support the district court's

29   finding of reason to believe the jury needs protection," and if

                                     -64-
1    "the court has taken reasonable precautions to minimize any

2    prejudicial effects on the defendant and to ensure protection of

3    his fundamental rights, the decision to empanel an anonymous jury

4    is reviewed only for abuse of discretion."     United States v.

5    Thai, 29 F.3d 785, 801 (2d Cir.), cert. denied, 513 U.S. 977

6    (1994).

7               In light of (a) the charges against the defendants,

8    which included a terrorist conspiracy to murder, and Stewart's

9    and Yousry's alleged provision of material support to that

10   conspiracy; (b) the reasonable likelihood that the pervasive

11   issue of terrorism would raise in the jurors' minds a fear for

12   their individual safety; (c) the fact that the charges against

13   Stewart and Yousry were in significant part about their alleged

14   corruption of the judicial process; (d) the widespread pretrial

15   publicity about the case; and (e) the extensiveness of the voir

16   dire administered to the jury by the court, we conclude that the

17   district court did not abuse its discretion.

18              c. Pre-Trial Suppression of Evidence

19                   i. Suppression of Evidence Obtained Pursuant to

20   FISA.   The defendants argue that evidence obtained from

21   electronic surveillance pursuant to FISA should have been

22   suppressed because such surveillance was improperly instituted

23   for the purpose of a criminal investigation, rather than for the

24   gathering of intelligence, and because FISA was unconstitutional

25   as applied in this case.



                                    -65-
1              By Opinion and Order dated September 15, 2003, the

2    district court denied the defendants' motions to suppress the

3    relevant evidence.   Sattar II, 2003 WL 22137012, at *22, 2003

4    U.S. Dist. LEXIS 16164, at *70.   At a pretrial hearing held on

5    April 9, 2002, the government informed the district court and the

6    defendants that it had

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

18   Id. at *2, 2003 U.S. Dist. LEXIS 16164, at *6.   A month later, by

19   letter dated May 8, 2002, the government also informed the

20   defendants that "information obtained or derived pursuant to the

21   authority of the FISA was used, and will continue to be used, in

22   connection with the prosecution of [this] case."   Id.; see 50

23   U.S.C. § 1806(c) (providing that where the government intends to

24   disclose information obtained from FISA surveillance, the

25   government "shall, prior to the trial . . . notify the aggrieved

26   person and the court . . . that the Government intends to so

27   disclose or so use such information").

28             As part of its pretrial obligations under FISA, the

29   government

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

                                    -66-
 1             computer-modem sounds obtained through audio
 2             surveillance of telephone numbers used by
 3             Sattar and Yousry; the FBI's written
 4             summaries . . . of approximately 5,300 voice
 5             calls that the FBI deemed to contain foreign
 6             intelligence information and therefore did
 7             not minimize; approximately 150 draft
 8             transcripts of voice calls; and approximately
 9             10,000 pages of e-mails obtained through
10             electronic surveillance of an e-mail account
11             used by Sattar. The Government has also
12             disclosed certain evidence solely to Stewart
13             and Yousry, including audiotapes of 63
14             telephone conversations between the
15             imprisoned Sheikh Abdel Rahman and his
16             attorneys and Yousry, and audio and video
17             recordings of three prison visits to Sheikh
18             Abdel Rahman by his attorneys and Yousry on
19             February 19, 2000, May 19 and 20, 2000, and
20             July 13 and 14, 2001.

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

22   at *7.

23             In accordance with the procedure set forth in FISA, see

24   50 U.S.C. § 1806(e), Sattar and Stewart moved to suppress the

25   evidence arising out of the FISA surveillance, and for access to

26   classified information regarding that surveillance.   The

27   government argues on appeal, as it did before the district court,

28   that the FISA surveillance at issue was lawfully authorized and

29   conducted.   The government moved the district court to order that

30   none of the classified documents or classified information

31   contained therein would need to be disclosed to the defendants.

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

33   the court conduct an in camera and ex parte review of the

34   materials and proffered an affidavit of then-Attorney General

35   John Ashcroft stating, in relevant part, that "it would harm the


                                    -67-
1    national security of the United States to disclose or have an

2    adversary hearing with respect to materials submitted to the

3    United States Foreign Intelligence Surveillance Court . . . in

4    connection with this matter."    Sattar II, 2003 WL 22137012, at

5    *5, 2003 U.S. Dist. LEXIS 16164, at *18.

6              After reviewing the classified materials, the district

7    court concluded that "all of the requirements of FISA were

8    satisfied" and "each of the FISA surveillances was authorized by

9    a FISA Court order that complied with the statutory requirements

10   for such orders and was supported by the statements and

11   certifications required by the statute."    Id. at *6, 2003 U.S.

12   Dist. LEXIS 16164, at *21.    The district court also concluded

13   that this was "not a case where disclosure [of the classified

14   FISA materials] was necessary or where a review of all of the

15   materials suggested that due process required disclosure to the

16   defendants."    Id. at *6, 2003 U.S. Dist. LEXIS 16164, at *22.

17             On appeal, Stewart argues that the materials generated

18   pursuant to the FISA surveillance should have been suppressed

19   because the surveillance was instituted for the purposes of a

20   criminal investigation, not for the purpose of intelligence

21   gathering.   In addition, Stewart contends that the FISA review

22   process lacks meaningful judicial review, and that due process

23   required that her counsel have access to the FISA applications

24   and warrants.

25             Stewart's attacks on the constitutionality of the FISA

26   statute are foreclosed by this Court's decision in United States

                                     -68-
1    v. Duggan, 743 F.2d 59 (2d Cir. 1984), which, despite its age,

2    remains binding precedent in this Circuit.   There, we concluded

3    that "the procedures fashioned in FISA [are] a constitutionally

4    adequate balancing of the individual's Fourth Amendment rights

5    against the nation's need to obtain foreign intelligence

6    information."   Id. at 73.

7              Congress created the FISA system in an attempt to

8    accommodate "the legitimate need of Government for intelligence

9    information and the protected rights of our citizens."    United

10   States v. U.S. District Court, 407 U.S. 297, 322-23 (1972).    As

11   we have explained, "Congress passed FISA to settle what it

12   believed to be the unresolved question of the applicability of

13   the Fourth Amendment warrant requirement to electronic

14   surveillance for foreign intelligence purposes, and to remove any

15   doubt as to the lawfulness of such surveillance."   Duggan, 743

16   F.2d at 73 (internal quotation marks omitted).   FISA's primary

17   focus is surveillance for the purpose of gathering foreign

18   intelligence information, which is defined to include

19   "information that relates to, and if concerning a United States

20   person is necessary to, the ability of the United States to

21   protect against [inter alia] international terrorism."    50 U.S.C.

22   § 1801(e)(1).

23             FISA established a court (the "FISA Court") comprised

24   of designated district court judges ("FISA Judges").    The FISA

25   Court has jurisdiction over applications for electronic

26   surveillance relating to the gathering of potential foreign

                                   -69-
1    intelligence information under the procedures set forth in FISA.

2    See id. § 1803.   FISA generally permits a federal officer, when

3    authorized by the President of the United States acting through

4    the Attorney General, to obtain from any FISA Judge an order

5    "approving electronic surveillance of a foreign power or an agent

6    of a foreign power for the purpose of obtaining foreign

7    intelligence information."   Id. § 1802(b).   "[A] group engaged in

8    international terrorism or activities in preparation therefor,"

9    is a "foreign power," id. § 1801(a)(4), and an "agent of a

10   foreign power" includes any person who "knowingly engages in

11   sabotage or international terrorism, or activities that are in

12   preparation therefor, for or on behalf of a foreign power" or

13   "knowingly aids or abets any person in [such] conduct," id.

14   § 1801(b)(2)(C) & (E).

15             In order to secure an order authorizing surveillance

16   from a FISA Judge, the officer's application must meet the

17   statutory requirements set forth in 50 U.S.C. § 1804.   For

18   example, the application must set forth the identity or

19   description of the target of the surveillance, id. § 1804(a)(2),

20   and a statement of facts and circumstances relied upon to justify

21   the officer's belief that the target is a foreign power or agent

22   of a foreign power and that each facility or location to be

23   subjected to surveillance is being used or is about to be used by

24   the target, id. § 1804(a)(3).   Prior to October 26, 2001, such a

25   federal officer was required to certify to the FISA judge that

26   "the purpose" of the FISA surveillance was the interception of

                                     -70-
1    foreign intelligence information.     See id. § 1804(a)(7)(B)

2    (2000).   In Duggan, we interpreted this provision to mean that

3    the interception of foreign intelligence information must be the

4    "primary objective" of the surveillance.     Duggan, 743 F.2d at 77.

5    The statute was changed in the wake of the events of September

6    11, 2001, however, to require only that "a significant purpose"

7    of the surveillance be the interception of such information.     See

8    50 U.S.C. § 1804(a)(7)(B) (2003); see also 50 U.S.C.

9    § 1804(a)(6)(B) (2008) (redesignated from (a)(7)).

10              Only after a FISA Judge has been satisfied that the

11   application meets FISA's requirements will he or she authorize

12   the surveillance.   To enter an order approving surveillance, the

13   FISA Judge must find that the application was properly filed and

14   properly authorized by the Attorney General; that associated

15   procedures designed to minimize the acquisition and retention of

16   non-publically available information concerning "United States

17   persons" satisfy FISA's requirements, see id. § 1801(h); that the

18   facts set forth in the application provide probable cause to

19   believe that the target is a foreign power or agent of such a

20   power; and that the locations to be subject to surveillance are

21   being used, or are about to be used, by the target, id.

22   § 1805(a).

23              When the application is complete and properly certified

24   by an executive branch official, however,

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

                                    -71-
1              the FISA Judge (1) to find probable cause to
2              believe that the target of the requested
3              surveillance is an agent of a foreign power;
4              (2) to find that the application is complete
5              and in proper form; and (3) when the target
6              is a United States person, to find that the
7              certifications are not "clearly erroneous."
8
9    Duggan, 743 F.2d at 77.   Stewart's argument that FISA does not

10   ensure adequate judicial view is therefore foreclosed by Duggan.

11   See id. at 77 & n.6.

12             Although the purpose of the surveillance must be to

13   obtain foreign intelligence information, "otherwise valid FISA

14   surveillance is not tainted simply because the government can

15   anticipate that the fruits of such surveillance may later be

16   used . . . as evidence in a criminal trial."     Id. at 78.   To the

17   contrary, the statute specifically contemplates the introduction

18   of FISA surveillance evidence in criminal prosecutions.       See 50

19   U.S.C. § 1806(b).   As both Congress and this Court have

20   recognized, "in many cases the concerns of the government with

21   respect to foreign intelligence will overlap those with respect

22   to law enforcement."   Duggan, 743 F.2d at 78.

23             When such FISA information is introduced in the course

24   of a criminal prosecution, and upon review of a suppression

25   motion, the trial court has the opportunity to review the FISA

26   Court's order, issued pursuant to 50 U.S.C. § 1805, in light of

27   the underlying applications for surveillance, filed pursuant to

28   50 U.S.C. § 1804, in order "to determine whether the surveillance

29   [at issue] was lawfully authorized and conducted."     50 U.S.C.

30   § 1806(f).   The district court's review of the FISA Judge's

                                    -72-
1    decision is, like the FISA Judge's decision itself, deferential.

2    "[A] reviewing court [has] no greater authority to second-guess

3    the executive branch's certifications than has the FISA Judge."

4    Duggan, 743 F.2d at 77.

5                FISA applications are likely to contain allegedly

6    sensitive information relating to perceived issues of national

7    security.   The applications are required to set forth how and why

8    the Executive Branch knows what it knows, which may include

9    references to covert agents and informers.    For this reason, "'ex

10   parte, in camera determination is to be the rule.'"    Id. at 78

11   (quoting United States v. Belfield, 692 F.2d 141, 147 (D.C. Cir.

12   1982)).   The district court has the "discretion to disclose

13   portions of [relevant materials], under appropriate protective

14   procedures, [but] only if [it] decides that such disclosure is

15   'necessary to make an accurate determination of the legality of

16   the surveillance'" or is otherwise required by due process.     Id.

17   (quoting 50 U.S.C. § 1806(f)).

18               Stewart argues on appeal that the "primary purpose" of

19   the FISA wiretapping in this case was to pursue a criminal

20   investigation, not to collect foreign intelligence information.

21   The district court, having reviewed the FISA materials, concluded

22   that "all of the surveillance at issue was conducted with the

23   appropriate purpose," whether with a "primary purpose" or "a

24   significant purpose" to obtain foreign intelligence information.

25   Sattar II, 2003 WL 22137012, at *12-*13, 2003 U.S. Dist. LEXIS

26   16164, at *40-*42.

                                      -73-
1              Upon our own in camera review of the underlying

2    material and the district court's order filed under seal, we are

3    confident that the district court did not err in so concluding.

4    Since the interceptions meet the "primary purpose" test, we, like

5    the district court, need not and do not address Stewart's

6    argument that FISA's new and less demanding "significant purpose"

7    test is unconstitutional.    Cf. In re Sealed Case, 310 F.3d 717,

8    735 (FISA Ct. Rev. 2002) (rejecting the "primary purpose" test in

9    favor of a "significant purpose" test).    Similarly, based on the

10   relevant evidence which, as adduced at trial, is outlined above,

11   the district court did not err in finding there to be "ample

12   probable cause to believe that the targets of the relevant

13   surveillance -- Sattar, Yousry, and Sheikh Abdel Rahman -- were

14   acting as agents of a foreign power" as defined by FISA, i.e.,

15   al-Gama'a, "and that each of the facilities at which the

16   surveillance was directed was being used, or was about to be

17   used, by that target."   Sattar II, 2003 WL 22137012, at *7, 2003

18   U.S. Dist. LEXIS 16164, at *24.

19             Stewart also argues that she was an inappropriate

20   target of the surveillance.    As the district court noted,

21   however, Stewart was never designated as a target in any of the

22   applications at issue; her alleged co-conspirators were.      "Once

23   the proper preconditions are established with respect to a

24   particular target, there is no requirement in FISA that all those

25   likely to be overheard engaging in foreign intelligence

26   conversations be named."    Duggan, 743 F.2d at 79.   Because

                                     -74-
1    Stewart's co-conspirators were targeted pursuant to proper

2    procedures, the Fourth Amendment did not require that Stewart

3    also be identified or described as a target in order for her

4    intercepted conversations to be used in a criminal prosecution.

5    Id. at 79 n.7.

6               Stewart further argues that the district court erred in

7    declining to disclose FISA materials to her counsel.    The

8    district court may order disclosure of FISA materials "under

9    appropriate security procedures and protective orders," but "only

10   where such disclosure is necessary to make an accurate

11   determination of the legality of the surveillance."    50 U.S.C.

12   § 1806(f).   When the district court "determines that the

13   surveillance was lawfully authorized and conducted, it shall deny

14   the motion of the aggrieved person except to the extent that due

15   process requires discovery or disclosure."   Id. § 1806(g).

16              As we have noted, in these circumstances disclosure is

17   the exception and "'ex parte, in camera determination is [] the

18   rule.'"   Duggan, 743 F.2d at 78.   The need to disclose materials

19   to defense counsel may arise if the judge determines there to be

20   "potential irregularities such as possible misrepresentation of

21   fact, vague identification of the persons to be surveilled or

22   surveillance records which include a significant amount of

23   nonforeign intelligence information, calling into question

24   compliance with the minimization standards contained in the

25   order."   Id. (internal quotation marks and brackets omitted).

26   But Stewart does not point to any case where any court has

                                    -75-
1    ordered disclosure in a situation similar to hers.   Upon our own

2    review of the materials, we conclude that there was no error in

3    the district court's determination that disclosure was

4    unnecessary for an accurate determination of the legality of the

5    surveillance at issue or to satisfy the requirements of due

6    process.

7                   ii.   Disclosure Regarding NSA Surveillance.     On

8    June 16, 2006, Stewart moved to compel disclosure as to whether

9    she or any of her co-defendants were subject to surveillance by

10   the National Security Agency ("NSA").   The government filed, ex

11   parte, a classified response to be reviewed in camera.   At a

12   hearing on September 25, 2006, the government insisted that its

13   classified submission was properly filed under section 4 of the

14   Classified Information Procedures Act ("CIPA"), Pub. L. No.

15   96-456, 94 Stat. 2025 (1980) (codified at 18 U.S.C. app. 3).     The

16   government also argued that none of the defense counsel was

17   properly cleared for access to the information and that, "without

18   going into the details of the classification level of our

19   submission, I don't think any defense counsel would ever have a

20   need to know the details of the terrorist surveillance program,

21   especially in this case."   H'g Tr. 13-14, Sept. 25, 2006.

22   Following the hearing and in response to subsequent orders from

23   the district court, the government filed supplemental ex parte

24   confidential responses dated October 6, 2006, October 12, 2006,

25   and October 13, 2006 for in camera review.   After additional

26   materials were submitted by the government, the district court

                                    -76-
1    granted, in part, the motion for disclosure, ordering the

2    government to make specified disclosures,25 but otherwise denied

3    the motion.    Order, Oct. 17, 2006, at 2.   In that public order,

4    the district court noted that it had filed an "ex parte Order

5    under seal containing classified information which explains in

6    detail the reasons for the Court's decision," and found that

7    there was a

 8              compelling reason for filing the additional
 9              Order ex parte and under seal because it
10              contains classified information that cannot
11              reasonably be segregated from the other
12              material in the Order, and that such a filing
13              is consistent with the Classified Procedures
14              Act and the rights of the defendants. See
15              [United States] v. Yunis, 867 F.2d 617, 622-
16              25 (D.C. Cir. 1989).
17
18   Id.

19              Through CIPA, Congress established procedures for

20   handling classified information in criminal cases.    "Classified

21   information" is defined to include "information or material that

22   has been determined by the United States Government pursuant to

23   an Executive order, statute, or regulation, to require protection

24   against unauthorized disclosure for reasons of national

25   security."    18 U.S.C. app. 3 § 1(a).   CIPA is "meant to protect

26   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.
                                    -77-
1    that does not impair the defendant's right to a fair trial."

2    United States v. Aref,   533 F.3d 72, 78 (2d Cir. 2008)

3    (alterations and internal quotation marks omitted), cert.

4    denied., 129 S. Ct. 1582 (2009).

5              Section 4 of CIPA establishes procedures for discovery

6    of classified information.   It provides:

 7             The court, upon a sufficient showing, may
 8             authorize the United States to delete
 9             specified items of classified information
10             from documents to be made available to the
11             defendant through discovery under the Federal
12             Rules of Criminal Procedure, to substitute a
13             summary of the information for such
14             classified documents, or to substitute a
15             statement admitting relevant facts that the
16             classified information would tend to prove.
17             The court may permit the United States to
18             make a request for such authorization in the
19             form of a written statement to be inspected
20             by the court alone. If the court enters an
21             order granting relief following such an ex
22             parte showing, the entire text of the
23             statement of the United States shall be
24             sealed and preserved in the records of the
25             court to be made available to the appellate
26             court in the event of an appeal.

27    18 U.S.C. app. 3 § 4.

28             This section "clarifies district courts' power under

29   Federal Rule of Criminal Procedure 16(d)(1) to issue protective

30   orders denying or restricting discovery for good cause," which

31   includes "information vital to the national security."    Aref, 533

32   F.3d at 78 (internal quotation marks omitted).   CIPA does not

33   itself create a government privilege against the disclosure of

34   classified information; it presupposes one.   Id.   The "most

35   likely source for the protection of classified information lies


                                    -78-
1    in the common-law privilege against disclosure of state secrets."

2    Id.

3               We have recently held that the state-secrets privilege

4    applies to criminal cases, but that "it must give way under some

5    circumstances to a criminal defendant's right to present a

6    meaningful defense."   Id. at 79.   To determine such

7    circumstances, we have employed the standard first articulated in

8    Roviaro v. United States, 353 U.S. 53 (1957), in the context of

9    the so-called informer's privilege in criminal prosecutions, see

10   Aref, 533 F.3d at 79-80.26

11              First, the district court must determine whether the

12   material in dispute is discoverable, and if so, whether the

13   state-secrets privilege applies.    Id. at 80.   It applies if "(1)

14   there is 'a reasonable danger that compulsion of the evidence

15   will expose . . . matters which, in the interest of national

16   security, should not be divulged,' and (2) the privilege is

17   'lodged by the head of the department which has control over the

18   matter, after actual personal consideration by that officer.'"

19   Id. at 80 (quoting United States v. Reynolds, 345 U.S. 1, 8, 10

20   (1953)).   If the information is discoverable but the privilege

21   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.
                                    -79-
1    information is helpful or material to the defense, i.e., useful

2    'to counter the government's case or to bolster a defense.'"      Id.

3    (citation omitted).    In order to be helpful or material, the

4    evidence "need not rise to the level that would trigger the

5    Government's obligation under Brady v. Maryland, 373 U.S. 83

6    (1963), to disclose exculpatory information."    Id.

7                We review the district court's decision to issue a

8    protective order under CIPA section 4 and Federal Rule of

9    Criminal Procedure 16(d)(1) for abuse of discretion.    Aref, 522

10   F.3d at 80.    Similarly, we review for abuse of discretion the

11   district court's finding whether evidence is "helpful" or

12   "material to the defense."    Id.

13               At the time of the district court's decision and order,

14   our decision in Aref had not yet issued.    As noted in the

15   district court's public order denying the motion to compel,

16   however, the district court relied on an opinion by a sister

17   circuit embracing a test similar to that embraced by the Aref

18   panel.    Order, Oct. 17, 2006, at 2 (citing United States v.

19   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...)
                                    -80-
1                Here, the government has invoked the state-secrets

2    privilege.    It asserts that the details of the NSA's operations,

3    including the surveillance vel non of any particular individual

4    or group, implicate national security and are among "the nation's

5    most guarded secrets."    Gov't Br. 389-90; id. (quoting Halkins v.

6    Helms, 598 F.2d 1, 7 (D.C. Cir. 1978)).    Where evidence is

7    intercepted, the sensitive nature of the information might lie

8    "not so much in the contents of the [information], as in the

9    time, place, and nature of the government's ability to intercept

10   the [information] at all."    Yunis, 867 F.2d at 623.28

11               In light of these general concerns and the principles

12   set forth in Yunis and Aref, and based upon our own review of the

13   underlying materials and the district court's sealed order, we

14   are satisfied that the district court did not abuse its

15   discretion or otherwise err in denying Stewart's motion to compel

16   disclosure.

17               We note, as we did in Aref, which postdated the

18   district court's order here, the absence of a formal public

19   "claim of privilege[] lodged by the head of the department which

20   has control over the matter, after actual personal consideration

21   by that officer."    Reynolds, 345 U.S. at 7-8; see Aref, 533 F.3d

22   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.
                                    -81-
1    such a flaw "is not necessarily fatal," and that "[i]t would 'be

2    of little or no benefit' for us to remand for the purpose of

3    having the department head agree that disclosure of the

4    classified information would pose a risk to national security

5    here."   Aref, 533 F.3d at 80.   But the absence of the formal

6    claim is not a trivial matter.    We do not demean it.    We expect

7    that, in light of the holding in Aref, we will not need to

8    address this issue in appeals from future prosecutions in which

9    the state-secrets privilege is invoked as the government is now

10   well-informed of this obligation.       Cf. id. ("Based on our holding

11   today . . . we trust that this issue will not arise in future

12   CIPA cases.").

13              We reject Stewart's claim that the district court erred

14   in reviewing materials ex parte and in camera.      As we noted in

15   Aref, "[b]oth CIPA section 4 and Rule 16(d)(1) authorize ex parte

16   submissions. . . .   When the 'government is seeking to withhold

17   classified information from the defendant, an adversary hearing

18   with defense knowledge would defeat the very purpose of the

19   discovery rules.'"   Aref, 533 F.3d at 81.

20              The CIPA procedures followed by the district court

21   place all parties involved (except perhaps the government) at a

22   substantial disadvantage: defendants are hampered in contesting

23   the assertions that are being made to the court by the

24   government; district courts and courts of appeals are deprived of

25   the opportunity for an adversarial proceeding upon which they are

26   typically dependent in attempting fairly and properly to resolve

                                      -82-
1    disputes; and the public, as well as the litigants, are deprived

2    of the assurances that come with public scrutiny of the work of

3    the courts.    The procedures are also, of course, subject to abuse

4    by the executive.   But a method for protection of classified

5    material is necessary, and these procedures have been established

6    by Congress and held to be constitutional.    We, as did the

7    district court, therefore accept them as a necessary, if

8    imperfect, accommodation of the varied interests implicated.

9              2.   Alleged Trial Errors.   Both Sattar and Yousry

10   challenge various evidentiary rulings made by the district court.

11   Sattar argues that the court abused its discretion by admitting a

12   book by Taha and a videotape of Taha, Osama Bin Laden, and other

13   al-Gama'a members encouraging violence, and by excluding news

14   footage purporting to depict Israeli violence against Palestinian

15   demonstrators.   In addition, Yousry challenges the exclusion of

16   several statements he made to FBI agents.

17             We review a district court's evidentiary rulings for

18   abuse of discretion.   See United States v. Kelley, 551 F.3d 171,

19   174 (2d Cir. 2009) (per curiam); United States v. Anglin, 169

20   F.3d 154, 162 (2d Cir. 1999).   Here, the district court did not

21   abuse its discretion with respect to any such rulings.

22             We are guided by certain basic principles established

23   by the Federal Rules of Evidence -- that, as a general rule,

24   "[a]ll relevant evidence is admissible," Fed. R. Evid. 402, but

25   that even relevant evidence, although admissible, may be excluded

26   by the district court "if its probative value is substantially

                                     -83-
1    outweighed by the danger of unfair prejudice, confusion of the

2    issues, or misleading the jury, or by considerations of undue

3    delay, waste of time, or needless presentation of cumulative

4    evidence," Fed. R. Evid. 403.   "A district court is obviously in

5    the best position to do the balancing mandated by Rule 403."

6    Salameh, 152 F.3d at 110.   "We will second-guess a district court

7    only if there is a clear showing that the court abused its

8    discretion or acted arbitrarily or irrationally."    Id. (internal

9    quotation marks omitted); accord United States v. Szur, 289 F.3d

10   200, 217 (2d Cir. 2002).

11             Taha's book was relevant and admissible as evidence of

12   the existence of the Count-Two conspiracy to murder persons in a

13   foreign country.   The Bin Laden video was similarly admissible,

14   and relevant to Taha's intent to murder or kidnap.   The district

15   court did not err in failing to find that the evidence was unduly

16   prejudicial.

17             It was also within the district court's discretion to

18   exclude both the news video, which it found to be of minimal

19   relevance yet highly prejudicial and confusing, and Yousry's

20   statements to the FBI, which it found to be essentially

21   duplicative of Yousry's own testimony.

22             The district court made a "conscientious assessment of

23   whether unfair prejudice substantially outweigh[ed] probative

24   value," Salameh, 152 F.3d at 110 (internal quotation marks

25   omitted), and did not otherwise abuse its discretion in making



                                     -84-
1    this assessment.    We therefore will not disturb its judgments on

2    these grounds.

3                3. Allegations of Juror Misconduct.   It was brought to

4    the district court's attention after the jury rendered its

5    verdict that a juror, referred to by the parties as "Juror # 39,"

6    had come forward with allegations concerning improprieties during

7    the jury's deliberations.    The defendants requested that the

8    district court "'follow up' and conduct an inquiry" into these

9    allegations.    Sattar IV, 395 F. Supp. 2d at 74-78.   By written

10   opinion, the district court denied the request.    Id.   Sattar

11   argues on appeal that the district court's actions were an abuse

12   of its discretion, insisting that the court should have met,

13   post-verdict, with Juror Number 39 to conduct an inquiry.     We

14   disagree.

15               The district court properly construed the request as

16   one for an evidentiary hearing, and concluded that there was no

17   "clear, strong, substantial and incontrovertible evidence . . .

18   that a specific, non-speculative impropriety has occurred,"

19   United States v. Ianiello, 866 F.2d 540, 543 (2d Cir. 1989),

20   especially in light of the fact that the juror had "several

21   opportunities to communicate directly with the court" regarding

22   any potential improprieties, but failed to do so, Jacobson v.

23   Henderson, 765 F.2d 12, 15 (2d Cir. 1985).    As the district court

24   explained, "the fact that Juror # 39 had direct access to the

25   Court and did not complain of any problems supports the

26   conclusion that these allegations are post hoc efforts caused by

                                     -85-
1    dissatisfaction that do not require further post-verdict

2    inquiry."    Sattar IV, 395 F. Supp. 2d at 77.   We agree.

3                4.   Cumulative Error Doctrine.   Yousry also argues on

4    appeal that we should reverse under the cumulative error

5    doctrine.    But the defendants have not identified any error in

6    the district court's rulings, "and the accumulation of non-errors

7    does not warrant a new trial."    United States v. Lumpkin, 192

8    F.3d 280, 290 (2d Cir. 1999).

9                VII. Propriety of the Sentences

10               The government appeals from the sentences imposed on

11   the defendants, asserting that they are unreasonable and unduly

12   lenient.    The government's principal brief was submitted prior to

13   the Supreme Court's decisions in Gall v. United States, 128 S.

14   Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558

15   (2007), which, as recognized by this Circuit in its en banc

16   decision in United States v. Cavera, 550 F.3d 180 (2d Cir. 2008),

17   have significantly altered the landscape of sentencing

18   jurisprudence.    The Supreme Court issued both Gall and Kimbrough

19   before the government filed its reply brief and oral argument

20   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...)
                                    -86-
1    A. Standard of Review

2                The principles that guide our review of the district

3    court's sentences are, "at first glance, beguilingly simple."

4    Cavera, 550 F.3d at 188.     Generally, we review for abuse of

5    discretion.    Id. at 189.   That "deferential" scrutiny

6    "encompasses two components: procedural review and substantive

7    review."    Id.

8                1. Procedural Review.   We first determine whether the

9    sentence was procedurally reasonable.     See id.   Ordinarily, the

10   district court must first correctly calculate the appropriate

11   range set forth by the United States Sentencing Guidelines.      Id.

12   at 190.    Then it "must form its own view of the nature and

13   circumstances of the offense and the history and characteristics

14   of the defendant," id. at 188, as mandated and guided by 18

15   U.S.C. § 3553(a)(1).30    In this context, "we review factual

          29
           (...continued)
     the unfortunate delay involved.     The en banc opinion issued on
     December 4, 2008.
          30
               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...)
                                       -87-
1   findings for clear error and the court's interpretation of the

2   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

5   sentence based on clearly erroneous facts").     In imposing the

6   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;

                           (C) to protect the public from
                 further crimes of the defendant; and

                           (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).


                                      -88-
1    sentence," including "any deviation from the Guidelines range."

2    Cavera, 550 F.3d at 190.

3              District courts are "generally free to impose sentences

4    outside the recommended [Guidelines] range" but "must consider

5    the extent of the deviation and ensure that the justification is

6    sufficiently compelling to support the degree of the variance."

7    Id. at 189 (citations and internal quotation marks omitted).

8              Thus, a district court "must satisfy us that it has

9    'considered the parties' arguments' and that it has a 'reasoned

10   basis for exercising [its] own legal decisionmaking authority.'"

11   Id. at 193 (quoting Rita v. United States, 551 U.S. 338, 356

12   (2007)) (brackets in Cavera).   When a court commits "significant

13   procedural error," we may "remand to the district court so that

14   it can either explain what it was trying to do, or correct its

15   mistake and exercise its discretion anew . . . rather than

16   . . . proceed[ing] to review the sentence for substantive

17   reasonableness."   Id. at 190 (citations and internal quotation

18   marks omitted).

19             2. Substantive Review.    Once we are satisfied that a

20   sentence was procedurally proper, we then review the district

21   court's determination for substantive reasonableness, "tak[ing]

22   into account the totality of the circumstances, giving due

23   deference to the sentencing judge's exercise of discretion, and

24   bearing in mind the institutional advantages of district courts."

25   Id. at 190.   Our role is no more than to "patrol the boundaries

26   of reasonableness."   Id. at 191.   Indeed, we "must defer heavily

                                     -89-
1    to the expertise of district judges," id. at 193, and will "set

2    aside a district court's substantive determination only in

3    exceptional cases where the trial court's decision cannot be

4    located within the range of permissible decisions," id. at 189

5    (internal quotation marks and emphasis omitted).

6              We do not "presume that a non-Guidelines sentence is

7    unreasonable," nor do we "require 'extraordinary' circumstances

8    to justify a deviation from the Guidelines range."     Id. at 190

9    (quoting Gall, 128 S. Ct. at 595).     In evaluating a sentence's

10   substantive reasonableness, "we may take the degree of variance

11   into account and consider the extent of a deviation from the

12   Guidelines.'"   Id.   We may "consider whether the factor, as

13   explained by the district court, can bear the weight assigned it

14   under the totality of circumstances in the case."    Id. at 191.

15   "[A] major departure should be supported by a more significant

16   justification than a minor one."    Gall, 128 S. Ct. at 597.    "But

17   we must not employ a rigid mathematical formula that uses the

18   percentage of a departure as the standard for determining the

19   strength of the justifications required for a specific sentence."

20   Cavera, 550 F.3d at 190 (internal quotation marks omitted).

21             Some decisions by the district court may be entitled to

22   more deference than others.    For example, as both the Supreme

23   Court and we have noted, variations from the Guidelines "may

24   attract greatest respect when the sentencing judge finds a

25   particular case outside the heartland to which the Commission

26   intends individual Guidelines to apply."     Kimbrough, 128 S. Ct at

                                     -90-
1    574-75 (internal quotation marks omitted); accord Cavera, 550

2    F.3d at 192.    When, on the other hand, the variation is based

3    upon a general disagreement with the Guidelines' applicability in

4    a "mine-run case," then "closer review may be in order."

5    Kimbrough, 128 S. Ct at 575.

6                But such "closer review" is less appropriate where the

7    Guideline in question is not based on empirical data and national

8    history.    The issuance of that sort of Guideline "do[es] not

9    exemplify the Commission's exercise of its characteristic

10   institutional role."    Id.   "[A] categorical disagreement with and

11   variance from [such a] Guideline[]," or, at least from the crack

12   cocaine Guidelines, "is not suspect."    Spears v. United States,

13   129 S. Ct. 840, 843 (2009) (per curiam).

14               The Supreme Court has yet to address fully the contours

15   of the "respect" that should be afforded to "an 'inside the

16   heartland' departure," id., from Guidelines created by the

17   Commission pursuant to its characteristic institutional role.

18   Such a departure would "necessarily [be] based on a policy

19   disagreement with the Guidelines" and would "necessarily

20   disagree[] [with the Guidelines] on a 'categorical basis.'"      Id.

21   We have recognized, however, that "some Guidelines enhancements

22   and reductions apply without modulation to a wide range of

23   conduct."    Cavera, 550 F.3d at 192.   Thus, "a district court may

24   find that even after giving weight to the [factors that drive the

25   enhancement or reduction] there is [still] a wide variety of

26   culpability amongst defendants and, as a result, impose different

                                      -91-
1    sentences based on the factors identified in § 3553(a)."    Id.   Of

2    course, irrespective of whether the conduct is found to be inside

3    or outside the "heartland," the "district court must explain its

4    reasons for its chosen sentence."   Id.31

5              Affording greater discretion to the district courts may

6    result in greater apparent disparities in sentences.   But "the

7    Supreme Court has made clear its view that disparities in

8    sentences imposed by different district judges are more likely to

9    reflect justified differences than are those arising from

10   differences of opinion among appellate panels."   Cavera, 550 F.3d

11   at 193.

12   B. Application to This Case

13             The government's principal claim of error on appeal is

14   that the district court abused its discretion by imposing

15   unreasonably lenient sentences.   The government also argues that

16   the district court erred as a matter of law by failing to apply

17   the Guidelines terrorism adjustment, U.S.S.G. § 3A1.4, to

18   Yousry's offense level.

19             1. Yousry's Sentence.   The district court initially

20   calculated Yousry's Guidelines range based on a total offense

21   level of 28 and a criminal history category of I, for a range of

22   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.
                                    -92-
1    applicable Guidelines range should have been enhanced in

2    accordance with the terrorism enhancement provide by the

3    Guidelines, U.S.S.G. § 3A1.4.    The district court concluded to

4    the contrary that the terrorism enhancement did not apply to

5    Yousry because he did not act with the requisite state of mind.

6    Based on the district court's findings, we agree with its

7    conclusion.

8               Upon consideration of the various factors set forth in

9    section 3553(a), the district court concluded that a significant

10   downward variance32 was appropriate, and ultimately sentenced

11   Yousry to a non-Guidelines sentence of 20 months of imprisonment,

12   followed by 2 years of supervised release.

13              a. Guidelines Calculations

14              We review the district court's interpretation of the

15   Guidelines de novo, and the district court's findings of fact for

16   clear error.    United States v. Legros, 529 F.3d 470, 474 (2d Cir.

17   2008).    We interpret the Guidelines as though they were a

18   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.
                                    -93-
1    States v. Kirvan, 86 F.3d 309, 311 (2d Cir. 1996).    Section

2    3A1.4, the so-called "terrorism enhancement," provides:

3                   (a) If the offense is a felony that
4              involved, or was intended to promote, a
5              federal crime of terrorism, increase by 12
6              levels; but if the resulting offense level is
7              less than level 32, increase to level 32.

 8                  (b) In each such case, the defendant's
 9             criminal history . . . shall be Category VI.
10
11   U.S.S.G. § 3A1.4.   The application notes incorporate 18 U.S.C.

12   § 2332b(g)(5) by reference.   See id. cmt. n.1.   That section

13   defines a "Federal crime of terrorism" as:
14
15                  an offense that--
16                  (A) is calculated to influence or affect
17             the conduct of government by intimidation or
18             coercion, or to retaliate against government
19             conduct; and
20                  (B) is a violation of [any one of many
21             statutes, including 18 U.S.C. § 2339A,
22             relating to the provision of material support
23             to terrorists, and 18 U.S.C. § 956(a)(1),
24             relating to conspiracies to murder persons
25             abroad].

26   18 U.S.C. § 2332b(g)(5).   The conventional meaning of

27   "calculated" is "devised with forethought."   II Oxford English

28   Dictionary 777 (2d ed. 1999).   Therefore, if a defendant's

29   purpose in committing an offense is to "influence or affect the

30   conduct of government by intimidation or coercion, or to

31   retaliate against government conduct," the first requirement of

32   section 2332b(g)(5)(A) is satisfied.   If, however, there is no

33   evidence that the defendant "sought to influence or affect the

34   conduct of the government," the crime is not a federal crime of



                                     -94-
1    terrorism.    See United States v. Leahy, 169 F.3d 433, 446 (7th

2    Cir. 1999).

3               The enhancement is not limited, however, to offenses

4    that are themselves federal crimes of terrorism.    By including

5    the "intended to promote" language, the drafters of the Guideline

6    "unambiguously cast a broader net."    United States v. Mandhai,

7    375 F.3d 1243, 1247 (11th Cir. 2004), cert. denied, 549 U.S. 923

8    (2006).   The criminal conduct at issue need not itself meet the

9    statutory definition of a federal crime of terrorism if "a goal

10   or purpose [of the defendant's act] was to bring or help bring

11   into being a crime listed in 18 U.S.C. 2332b(g)(5)(B)."     Id. at

12   1248; accord United States v. Arnaout, 431 F.3d 994, 1001-02 (7th

13   Cir. 2005).

14              The district court declined to apply the terrorism

15   enhancement to Yousry's sentence.    The court explained:

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

24   Sent'g Tr. 143-44; see 18 U.S.C. § 2332b(g)(5)(A) (defining

25   "federal crime of terrorism").    The government does not challenge

26   this finding, which we conclude to be consistent with the record

27   and not clearly erroneous.

28              Nonetheless, the government argues that the enhancement

29   is appropriate despite the fact that Yousry has committed neither

30   a federal crime of terrorism nor any other crime with the intent
                                    -95-
1    to promote such a crime.   According to the government, the

2    enhancement applies because Yousry's offense was "a felony that

3    involved . . . a federal crime of terrorism."     U.S.S.G. § 3A1.4

4    (emphasis added).   But under the "involved" prong of section

5    3A1.4, the enhancement would be applicable to Yousry only if he

6    himself had committed a federal crime of terrorism.    See Arnaout,

7    431 F.3d at 1001 ("The ordinary and plain meaning of 'involved'

8    means 'to include.'"); United States v. Graham, 275 F.3d 490, 516

9    (6th Cir. 2001), cert. denied, 535 U.S. 1026 (2002) ("[W]e

10   believe that in the context at hand, the word 'involved'

11   signifies that a defendant's offense included a federal crime of

12   terrorism; in other words, that a defendant committed, attempted,

13   or conspired to commit a federal crime of terrorism as defined in

14   18 U.S.C. § 2332b(g)(5).").   And, as the Fourth Circuit has

15   recognized, commission of a federal crime of terrorism, which

16   would trigger the "involved" prong of the enhancement,

17   incorporates "a specific intent requirement, namely, that the

18   underlying felony was 'calculated to influence or affect the

19   conduct of government by intimidation or coercion, or to

20   retaliate against government conduct.'   18 U.S.C. § 2332b(g)(5)."

21   United States v. Chandia, 514 F.3d 365, 376 (4th Cir. 2008).    So

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

23   Yousry himself sought to influence or affect the conduct of a

24   government.   The enhancement therefore does not apply under the

25   "involved" prong.   See Leahy, 169 F.3d at 446.



                                    -96-
1              The government maintains that any motivational

2    requirement imposed by the terrorism enhancement can be imputed

3    to Yousry from his co-conspirators' relevant conduct under

4    section 1B1.3(a) of the Guidelines.   It provides, in relevant

5    part:

6              [A]djustments in Chapter Three [including the
7              Terrorism Enhancement] shall be determined on
8              the basis of the following:
 9                  (1)(A) all acts and omissions committed,
10             aided, abetted, counseled, commanded,
11             induced, procured, or willfully caused by the
12             defendant; and
13                  (B) in the case of a jointly undertaken
14             criminal activity (a criminal plan, scheme,
15             endeavor, or enterprise undertaken by the
16             defendant in concert with others, whether or
17             not charged as a conspiracy), all reasonably
18             foreseeable acts and omissions of others in
19             furtherance of the jointly undertaken
20             criminal activity, that occurred during the
21             commission of the offense of conviction, in
22             preparation for that offense, or in the
23             course of attempting to avoid detection or
24             responsibility for that offense . . . .

25   U.S.S.G. § 1B1.3(a).   The government asserts that it was

26   reasonably foreseeable to Yousry that his co-conspirators were

27   acting in a manner "calculated to influence or affect the conduct

28   of government," so that the requirement of section 2332b(g)(5)(A)

29   is satisfied as to him.

30             But sections 1B1.3(a)(1)(A) and (B) apply to "acts and

31   omissions," while, as noted above, section 2332b(g)(5)(A)

32   describes a motivational requirement, a "specific intent."

33   Chandia, 514 F.3d at 376.   We cannot conflate Yousry's acts with

34   his co-defendants' mental states.   As one member of this Court

35   has pointed out, "We have never regarded mens rea as an 'act' of
                                    -97-
1    the defendant for purposes of the relevant conduct guideline, nor

2    should we."   United States v. McHugh, 122 F.3d 153, 158 (2d Cir.

3    1997) (Newman, J., concurring).      "Section 1B1.3(a)(1)(A) permits

4    selection of an enhanced guideline for 'acts' committed by the

5    defendant. . . .   The natural meaning of 'act' connotes conduct,

6    and the meaning of the guideline should not be strained to

7    include state of mind."    Id.    Here, too, the terrorism

8    enhancement's motivational requirement, as incorporated by

9    reference to section 2332b(g)(5)(A), is not an "act" or

10   "omission" under section 1B1.3(a)(1)(B).      The enhancement is

11   therefore not applicable.

12             We have examined the other arguments made by the

13   government in support of its expansive reading of the "involved"

14   prong of the terrorism enhancement and we find them to be

15   similarly without merit.

16             b. Section 3553(a) Factors

17             We conclude, then, that the district court properly

18   calculated Yousry's Guidelines range to be 78 to 97 months.        We

19   must therefore determine in light of that range and the totality

20   of the circumstances whether Yousry's sentence of 20 months of

21   imprisonment, imposed following the district court's section

22   3553(a) inquiry, was substantively unreasonable.

23             We need not outline again the nature of the crimes of

24   which Yousry was convicted.      We focus instead on the reasons

25   given by the district court in support of its downward variance.



                                       -98-
1              First, the court found that Yousry's conduct was

2    "unusual and f[e]ll outside the heartland of material support for

3    terrorist activity."    Sent'g Tr. 150.   "[A] district court's

4    decision to vary from the Guidelines 'may attract greatest

5    respect when the sentencing judge finds a particular case outside

6    the "heartland" to which the Commission intends individual

7    Guidelines to apply.'"    Cavera, 550 F.3d at 192 (quoting

8    Kimbrough, 128 S. Ct. at 574-75).    We perceive no basis for

9    concluding that the district court erred in deciding that to be

10   the case with respect to Yousry, particularly because he was

11   acting as a translator, not a lawyer or other professional.

12             Second, the district court found that "no actual harm

13   to victims occurred" although the court was "well aware that such

14   harm is not required and that if such harm occurred the guideline

15   range would be higher."    Sent'g Tr. 150.   We conclude that it was

16   not unreasonable for the district judge to decide that the fact

17   that no injury occurred in the case mitigated the gravity of

18   Yousry's offense.33    The criminal law often punishes the


          33
             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. As is made clear by the discussion
     below, 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 each defendant. 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 substantial harm caused by her criminality,
                                                        (continued...)
                                    -99-
1    substantive commission of a crime more severely than an attempt

2    to commit the same crime, even when that which separates an

3    attempt from the substantive commission of an offense is not

4    culpability but fortuity.   Fortuitous events are not

5    categorically irrelevant to the determination of a just

6    punishment nor is their consideration necessarily inappropriate.

7    As the Supreme Court has recently noted, although "[i]t is

8    unusual to impose criminal punishment for the consequences of

9    purely accidental conduct[,] it is not unusual to punish

10   individuals for the unintended consequences of their unlawful

11   acts."    See, e.g., Dean v. United States, 129 S. Ct. 1849, 1857-

12   58 (2009); id. at 1852 (concluding that a defendant who carried a

13   firearm during and in relation to a bank robbery in violation of

14   18 U.S.C. § 924(c)(1)(A) is subject to a 10 year mandatory

15   minimum pursuant to 18 U.S.C. § 924(c)(1)(A)(iii) because his

16   "firearm [was] discharged" in the course of the robbery, even

17   though "the gun [went] off accidentally," was not pointed at

18   anyone when it discharged, and nobody was hurt).

19              Third, the court noted that although Yousry's offenses

20   were "plainly serious," his "role in the offenses was subservient

21   to the others involved" in the conspiracy.   Sent'g Tr. 150.   The

22   Guidelines were "intended to eliminate national disparity," but

23   "[w]e do not, as a general matter, object to district courts'


          33
           (...continued)
     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.
                                   -100-
1    consideration of similarities and differences among co-defendants

2    when imposing a sentence."    United States v. Wills, 476 F.3d 103,

3    109, 110 (2d Cir. 2007) (emphasis omitted), abrogated on other

4    grounds by Kimbrough, 128 S.Ct. at 574-75, as recognized in

5    Cavera, 550 F.3d at 191; accord United States v. Williams, 524

6    F.3d 209, 216 (2d Cir. 2008).    We also defer to the district

7    court's conclusion that Yousry's conduct was less culpable than

8    that of his co-conspirators.    On this basis, we conclude that the

9    district court did not err by giving weight to this factor.

10               Fourth, the district court found that Yousry "did not

11   engage in the offenses for profit and . . . did not support or

12   believe in the use of violence to achieve what he wanted."

13   Sent'g Tr. 150.    These facts mitigate the gravity of the conduct

14   at issue.    They also affect consideration of the "history and

15   characteristics of the defendant" and the need to "protect the

16   public from further crimes of the defendant" and to "afford

17   adequate deterrence."    18 U.S.C. § 3553(a).   The court concluded

18   that a substantial downward variance was thus justified on the

19   grounds that a lesser degree of punishment than otherwise called

20   for would be sufficient for purposes of deterrence and the

21   protection of the public.    As the Gall Court noted, a district

22   court is well-situated to make determinations about the

23   "character of the defendant" and whether, given such a character,

24   the defendant is more or less likely "to return to criminal

25   behavior" or constitute "a danger to society."    Gall, 128 S. Ct.

26   at 600-01.

                                     -101-
1              The district court did not err in finding that Yousry

2    was not motivated by potential profit and did not believe in the

3    use of violence.    Nor did it err in considering these factors

4    while fashioning a non-Guidelines sentence for him.      In

5    evaluating culpability, we cannot discount the relevance of the

6    defendant's motivations -- i.e., whether mercenary, see, e.g., 18

7    U.S.C. § 1958 (murder for hire), or born from a commitment to the

8    use of violence.    The district court acted well within its

9    discretion in deciding that Yousry was both less dangerous and

10   more easily deterred than had he been acting on a for-hire basis

11   or committed to the use of violence for political ends.

12             Fifth, the district court found that Yousry's

13   conviction made it "doubtful that the defendant could pursue" his

14   career as an academic or translator, and therefore that the need

15   for further deterrence and protection of the public is lessened

16   because the conviction itself "already visits substantial

17   punishment on the defendant."    Sent'g Tr. 151.    The district

18   court is specifically required by section 3553(a) to consider the

19   "just punishment for the offense."      18 U.S.C. § 3553(a)(2)(A).

20   It is difficult to see how a court can properly calibrate a "just

21   punishment" if it does not consider the collateral effects of a

22   particular sentence.    Upon careful review of the record and the

23   reasons given by the court, we are convinced that the court did

24   so appropriately.

25             Sixth, the district court found that Yousry provided

26   "extensive . . . cooperation" to the government following the

                                     -102-
1    terrorist attacks of September 11, 2001.     Sent'g Tr. 151.   The

2    court concluded that this cooperation "demonstrates a willingness

3    to help law enforcement and reduces the need for rehabilitation

4    and deterrence."    Id.   We defer to the district court's

5    evaluation of the extent of Yousry's cooperation.      And of course,

6    use of a defendant's cooperation to justify significant variances

7    or departures from the otherwise applicable Guidelines

8    calculations is commonplace.     The government argues that Yousry's

9    assistance was not as extensive as the district court found it to

10   be, but we have been given no cause to question the court's

11   relevant findings of fact or the manner in which it accounted for

12   them in sentencing.

13             Seventh, the court found that Yousry "will not be in a

14   situation to commit the offenses of conviction again," because

15   "it is unlikely that he will ever be able to serve as an

16   interpreter in an official capacity."     Id.   We defer to this

17   finding, too.   It is not error for a district court to evaluate,

18   based on the defendant's individual circumstances, the extent of

19   punishment "necessary to deter [him] from engaging in future

20   criminal conduct or to protect the public from his future

21   criminal acts."    Gall, 128 S. Ct. at 602; see 18 U.S.C.

22   § 3553(a)(2)(B) & (C).

23             The district court did not, of course, assign precise

24   weights to particular factors.     Doing so would presuppose "the

25   existence of some ascertainable method of assigning percentages

26   to various justifications," and would constitute a species of

                                      -103-
1    "mathematical approach" which has been expressly disavowed by the

2    Supreme Court as "a classic example of attempting to measure an

3    inventory of apples by counting oranges."     Gall, 128 S. Ct. at

4    596.

5              In evaluating the ultimate substantive reasonableness

6    of Yousry's sentence, we must determine, under the totality of

7    the circumstances, whether these various factors can "bear the

8    weight" assigned to them by the district court.     We are satisfied

9    that they can.    We are equally satisfied that the district court

10   "consider[ed] the extent of the deviation and ensure[d] that the

11   justification [was] sufficiently compelling to support the degree

12   of variance."    Id. at 597.

13             In conducting our review, we are further satisfied that

14   the district court did not ignore the Guidelines or "treat them

15   merely as a body of casual advice."     Cavera, 550 F.3d at 189

16   (internal quotation marks omitted).     Even were we inclined to

17   think that the district court did not appreciate the weight of

18   the Guidelines -- which, as we say, we are not -- in light of all

19   of the foregoing, including the court's long-term and intimate

20   involvement with these proceedings, any such conclusion would be

21   purely a matter of surmise on our part.     See Rita, 551 U.S. at

22   357-58 (noting that the sentencing judge had "greater familiarity

23   with[] the individual case and the individual defendant before

24   him than the Commission or the appeals court"); see also Gall,

25   128 S. Ct. at 597.    The district court did not abuse its

26   discretion in sentencing Yousry.

                                     -104-
1    B. Sattar's Sentence

2               The district court calculated Sattar's total offense

3    level to be 43 and his criminal history category to be 6, for a

4    Guidelines "range" of life imprisonment.     But in conducting its

5    own independent review, as guided by section 3553(a), the

6    district court concluded that such a sentence would be "seriously

7    disproportionate" to the offense.    Sent'g Tr. 35.   The court

8    imposed a sentence of 24 years (288 months) of imprisonment, to

9    be followed by five years of supervised release.

10              1. Guidelines Calculation.    The district court

11   calculated Sattar's sentence, as it did Yousry's, under the

12   November 2000 Guidelines.    The court ultimately adopted the

13   recommendations of the Probation Department in making its

14   Guidelines calculation, except insofar as the district court

15   added enhancements based on Sattar's obstruction of justice.

16              a. Enhancements

17              Sattar's Guidelines "range" of life imprisonment was

18   arrived at based in part on the sentencing court's determination

19   that the terrorism enhancement applied to both Sattar's Count-Two

20   and Count-One conduct.     The district court also enhanced Sattar's

21   sentence on the ground that he obstructed justice.     See U.S.S.G.

22   § 3C1.1.

23              b. Departures

24              Sattar moved for a downward departure based on the

25   conditions of his confinement.    The district court recognized

26   that it was able to depart under the Guidelines for severe

                                      -105-
1    conditions of detention, but "because thus far th[ose conditions]

2    reflect only strict security measures rather than an abuse of

3    those measures," it declined to do so.    Sent'g Tr. 33.    Instead,

4    the court concluded that it would take Sattar's conditions of

5    confinement into account in considering the section 3553(a)

6    factors.

7               2. Section 3553(a) Factors.   The district court began

8    its section 3553(a) analysis with a correct calculation of the

9    applicable Guidelines "range" -- life imprisonment.    The court

10   then imposed the non-Guidelines sentence of 24 years'

11   imprisonment, for which it gave three principal reasons.

12              First, the court concluded that the terrorism

13   enhancement overstated the seriousness of Sattar's crime by

14   transforming a Guidelines range of 97 to 121 months to life

15   imprisonment.    The court found that the otherwise-applicable

16   Guideline range was "relatively low" because Sattar was convicted

17   of conspiracy to murder and not of murder itself, and that the

18   terrorism enhancement failed to account for the fact that "no

19   injury actually occurred in this case."    Sent'g Tr. 35.   The

20   district court noted that a variance downward from a Guidelines

21   range driven upward by the enhancement is permissible when the

22   enhancement "prevents the penalty from fitting the crime, based

23   on the facts of th[e] record."    Id. at 35-36 (citing Mandhai, 375

24   F.3d at 1249).

25              Second, the terrorism enhancement put Sattar in the

26   highest criminal history category, VI, "without a single past

                                      -106-
1    criminal history point."    Id. at 36.   The district court

2    concluded that such a jump "overstates [Sattar's] past conduct

3    and the likelihood that the defendant after a substantial period

4    of incarceration would commit further crimes."     Id.

5              Third, the court noted that Sattar had been under

6    "extremely restrictive conditions of confinement for 4-1/2

7    years," and there "is every reason to expect that his conditions

8    of confinement will continue to be substantially more severe than

9    the average prisoner."    Id. at 37.   These conditions include

10   being kept in a cell for 23 hours a day and under constant

11   surveillance.    As a result, the court concluded, "the punitive

12   aspects of the defendant's confinement are increased and the

13   deterrent effect of the defendant's confinement is also

14   increased."    Id.

15             The court further noted that, for reasons explained in

16   part under seal, a downward variance is warranted based on

17   factors relevant to the history and characteristics of the

18   defendant and the need to afford adequate deterrence.34       The

19   district court observed that based on the totality of the

20   circumstances and on its review of cases presented by the

21   government as comparators, Sattar's sentence of 24 years'

22   incarceration does not promote unwarranted sentencing

23   disparities.




          34
             We have reviewed the document under seal.        See Sattar
     Statement of Reasons, Oct. 26, 2006.
                                   -107-
1               3. Analysis.   The government's principal argument on

2    cross-appeal is that Sattar's sentence is substantively

3    unreasonable in light of his conduct and "long-term dedication to

4    violence."    Gov't Reply Br. 39.   We have no quarrel with the

5    government as to the nature and quality of Sattar's conduct.

6    Neither, to any significant extent, did the district court.       It

7    considered, at length, the seriousness of Sattar's crimes.

8               "[A] sentence outside the Guidelines carries no

9    presumption of unreasonableness."     Irizarry v. United States, 128

10   S. Ct. 2198, 2202 (2008).    "[T]he Guidelines are only one of the

11   factors to consider when imposing sentence . . . ."     Gall, 128 S.

12   Ct. at 602.    Taking those precepts as a starting point, we are

13   satisfied that in fashioning a non-Guidelines sentence, the

14   district court did not clearly err in according weight to the

15   factors it identified.    As we recently noted in Cavera, "at the

16   procedural part of review, we will not categorically proscribe

17   any factor 'concerning the background, character, and conduct' of

18   the defendant, with the exception of invidious factors."     Cavera,

19   550 F.3d at 191.

20              We have already noted in the context of Yousry's

21   sentence that the fact that no injury occurred may be relevant to

22   fashioning a sentence "sufficient, but not greater than

23   necessary" to accomplish the purposes set forth in 18 U.S.C.

24   3553(a).   And it was not clear error for the district court to

25   conclude that a criminal history category of VI significantly



                                     -108-
1    overstated Sattar's criminal history and likelihood of committing

2    further offenses.

3                We have recognized that "the Sentencing Commission had

4    a rational basis for creating a uniform criminal history category

5    for all terrorists under [U.S.S.G.] § 3A1.4(b), because even

6    terrorists with no prior criminal behavior are unique among

7    criminals in the likelihood of recidivism, the difficulty of

8    rehabilitation, and the need for incapacitation."   United States

9    v. Meskini, 319 F.3d 88, 92 (2d Cir.), cert. denied, 538 U.S.

10   1068 (2003).   But in the same virtual breath, we said, "[a] judge

11   determining that § 3A1.4(b) over-represents 'the seriousness of

12   the defendant's past criminal conduct or the likelihood that the

13   defendant will commit other crimes' always has the discretion

14   under § 4A1.3 to depart downward in sentencing.   U.S.S.G.

15   § 4A1.3."   Id.

16               And even with enhancements of magnitude -- i.e., those

17   that "sharply increase the recommended sentences" -- there still

18   may be "a wide variety of culpability amongst defendants."

19   Cavera, 550 F.3d at 192.   There may therefore be "different

20   sentences based on the factors identified in § 3553(a)."     Id.

21   Sattar's crimes are indeed grave; he may well be the most

22   culpable of these defendants.   But the district court has a

23   responsibility, inter alia, "to avoid unwarranted sentence

24   disparities among defendants with similar records who have been

25   found guilty of similar conduct," 18 U.S.C. § 3553(a)(6).

26   Perhaps all who merit this enhancement are culpable and dangerous

                                     -109-
1    -- but some among them are more culpable, more dangerous, with

2    crimes more serious, than others.   It is the district court that

3    is primarily charged with the responsibility for making such

4    distinctions.

5              The district court is also in the best position to make

6    an individual determination about the "history and

7    characteristics" of a particular defendant, and to adjust the

8    individualized sentence accordingly.   See 18 U.S.C. § 3553(a);

9    cf. U.S.S.G. § 4A1.3 (permitting downward departure where "the

10   court concludes that a defendant's criminal history category

11   significantly over-represents the seriousness of a defendant's

12   criminal history or the likelihood that the defendant will commit

13   further crimes").   Upon examining the reasons the district court

14   gave, we have no reason not to defer to its assessment here.

15             It was not unreasonable for the district court to

16   conclude that the severity of the conditions of confinement would

17   increase the severity of the punishment and the amount of

18   deterrence associated with a given term of imprisonment in light

19   of the particular conditions of confinement under which Sattar is

20   incarcerated.   The district court did not abuse its discretion in

21   varying downward based on those conditions here.     We think that

22   the factors upon which the district court relied in determining

23   Sattar's appropriate sentence can "bear the weight" the district

24   court assigned to them.   Cavera, 550 F.3d at 191.




                                    -110-
1               We note, finally, that the court sentenced Sattar to

2    more than twice what the maximum Guideline sentence would have

3    been without the terrorism enhancement.

4               The sentence thus adequately reflected the severity of

5    the crime.

6               C. Stewart's Sentence

7               Before sentencing Stewart, the district court

8    calculated her offense level under the November 2000 Guidelines

9    to be 41, her criminal history category to be VI, and her

10   Guidelines range to be 360 months, or 30 years, the statutory

11   maximum.   The court concluded, however, that a sentence of 28

12   months' imprisonment was sufficient but no greater than necessary

13   to accomplish the purposes set forth in 18 U.S.C. § 3553(a).

14              1. Guidelines Calculations

15              a. Enhancements

16              Over Stewart's objection, the district court concluded

17   that the terrorism enhancement of section 3A1.4 applied because

18   she had committed a federal crime of terrorism.   The enhancement

19   was triggered in part by the district court's finding that

20   Stewart's actions were "calculated to affect the conduct of the

21   Egyptian government through intimidation and coercion."    Sent'g

22   Tr. 108.   The district court noted that Stewart's "conduct cannot

23   be found to be outside the heartland of the enhancement," but

24   stated that it nonetheless would "take all of the defendant's

25   arguments [as to why the enhancement did not properly apply to



                                    -111-
1    her conduct] into account in performing the analysis under

2    Section 3553(a)."   Id.

3              The district court noted that the terrorism enhancement

4    automatically placed Stewart in criminal history category VI.

5    The court appeared to accept Stewart's argument that the

6    enhancement overstated the seriousness of her past conduct or the

7    likelihood that she would commit further crimes.    Instead of

8    adjusting the criminal history in the context of the Guidelines

9    calculations themselves, however, the court found this to be "one

10   of the rare cases" under United States v. Crosby, 397 F.3d 103,

11   112 (2d Cir. 2005), where it would be more appropriate to

12   determine the extent of the downward adjustment in the context of

13   the section 3553(a) analysis.   Sent'g Tr. 109.35

14             The government also sought an enhancement of Stewart's

15   sentence on the ground that she obstructed justice.    The

16   Guidelines provide that where a defendant "willfully obstructed

17   or impeded, or attempted to obstruct or impede, the

18   administration of justice with respect to the investigation,

19   prosecution, or sentencing of the instant offense of conviction"

20   and where the obstructive conduct related to the offense of

21   conviction or a closely related offense, that the applicable



          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.
                                   -112-
1    Guidelines should be enhanced by 2 levels.     U.S.S.G. § 3C1.1.

2    The government argued that Stewart committed perjury by

3    testifying "that she understood that there was a bubble built

4    into the SAMs whereby the attorneys could issue press releases

5    containing Abdel Rahman's statements as part of their

6    representation of him" and testifying about her purported lack of

7    knowledge of Taha.   Sent'g Tr. 111.    As we have noted, Taha was a

8    follower of Abdel Rahman and a military leader in al-Gama'a who

9    claimed responsibility for the November 1997 massacre at Luxor,

10   and was allegedly part of the Count-Two conspiracy.     The district

11   court noted that there was "evidence to indicate that [Stewart's]

12   statements were false statements."     Id.   It concluded, however,

13   that it was "unnecessary to reach [the question] whether the

14   defendant knowingly gave false testimony with the intent to

15   obstruct the proceedings" for two reasons:     First, the Guidelines

16   calculation already provided for the statutory maximum permitted

17   by the statutes of conviction, and second, a non-Guidelines

18   sentence was, in the estimation of the court, "reasonable and

19   most consistent with the factors set forth in Section 3553(a)."

20   Id. at 111-12.

21             b. Departures

22             Stewart sought a downward departure pursuant to section

23   5H1.4 of the Guidelines, which provides that while "[p]hysical

24   condition . . . is not ordinarily relevant in determining whether

25   a sentence should be outside the applicable guideline range,"

26   nonetheless "an extraordinary physical impairment may be a reason

                                    -113-
1    to impose a sentence below the applicable guideline range."

2    U.S.S.G. § 5H1.4.     Stewart proffered substantial documentation of

3    serious illness.     As with Stewart's criminal history

4    calculations, the district court concluded that it "[did] not

5    have to reach the question of whether [Stewart's] medical

6    condition, given her age and continuing treatment, is sufficient

7    in itself to warrant a departure from the guidelines," because it

8    would take that condition into account in making its

9    determination under section 3553(a).     Sent'g Tr. 110.

10               The district court declined to adjust the Guidelines

11   calculations based on Stewart's argument that she committed her

12   crime in order to avoid a perceived greater harm as set forth in

13   "Lesser Harms" policy statement of the Guidelines.     See U.S.S.G.

14   § 5K2.11.    Stewart argued before the district court that her

15   conduct "was the product of her perception that her client's

16   health and well-being [was] seriously jeopardized by his

17   continued imprisonment in the United States."     Stewart Sent'g Br.

18   44-45.   Under the policy statement, where a defendant "commit[s]

19   a crime in order to avoid a perceived greater harm," "a reduced

20   sentence may be appropriate, provided that the circumstances

21   significantly diminish society's interest in punishing the

22   conduct, for example, in the case of a mercy killing."     U.S.S.G.

23   § 5K2.11.    However, "[w]here the interest in punishment or

24   deterrence is not reduced, a reduction in sentence is not

25   warranted."    Id.   Here, the district court found this case not to

26   be one where the interest in punishment or deterrence is reduced.

                                      -114-
1     The policy statement further provides that a reduction in the

2    otherwise applicable sentence might be appropriate where "conduct

3    may not cause or threaten the harm or evil sought to be prevented

4    by the law proscribing the offense at issue" such as "where a war

5    veteran possessed a machine gun or grenade as a trophy, or a

6    school teacher possessed controlled substances for display in a

7    drug education program."    U.S.S.G. § 5K2.11.   But the court

8    declined to conclude that Stewart's conduct did not cause or

9    threaten the harm sought to be prevented by the statutes that

10   Stewart violated.

11               Stewart also moved for a departure on the ground that

12   her conduct was "aberrational."    A Guidelines policy statement

13   provides that "[a] sentence below the applicable guideline range

14   may be warranted in an extraordinary case if the defendant's

15   criminal conduct constituted aberrant behavior."     U.S.S.G.

16   § 5K2.20.    But the court, noting that Stewart's conduct was

17   "committed over an extended period of time, involv[ing] repeated

18   acts of deception, and . . . significant planning," Sent'g Tr.

19   110, concluded that such a departure would be inappropriate, and

20   declined to grant it.

21               The district court thus reached its final Guidelines

22   calculation, using the November 2000 Guidelines, with a total

23   offense level of 41, a criminal history category of VI, and

24   therefore a Guidelines "range" of 360 months, the statutory

25   maximum.    The government sought a term of life imprisonment;

26   Stewart sought a non-incarceratory sentence.

                                     -115-
1              2. Section 3553(a) Factors.   Based on its section

2    3553(a) analysis, the district court's sentence substantially

3    varied from the applicable Guidelines range.

4              As the starting point for its section 3553(a) analysis,

5    the court addressed the applicability of the terrorism

6    enhancement, which "while correct under the guidelines, would

7    result in an unreasonable result . . . and produce a guideline

8    range about quadruple the range [that would otherwise apply]

9    without the enhancement."   Sent'g Tr. 114.   The district court

10   then observed:

11             First, that Stewart's was an "atypical case" for the

12   terrorism enhancement inasmuch as "the thrust of the violation

13   was the provision of a co-conspirator to a terrorist conspiracy,"

14   id. at 113; second, as with Sattar, that the structure of the

15   terrorism enhancement prevented the Guidelines from taking into

16   account the fact that no victim was harmed as a result of the

17   offense as charged; and third, again as with Sattar, that the

18   enhancement operated to prevent the Guidelines from taking into

19   account Stewart's actual criminal history.    By virtue of the

20   terrorism enhancement, Stewart was automatically classified as

21   within criminal history category VI, the highest possible

22   category, whereas if her sentence were based on her actual

23   criminal history, she would have been classified in category I,

24   the lowest possible category.

25             The court therefore concluded that the terrorism

26   enhancement was "dramatically unreasonable" and "overstates the

                                     -116-
1    seriousness of [her] past conduct and the likelihood that [she]

2    will repeat the offense."   Id.    Stewart "has no criminal history

3    and yet is placed in the highest criminal history category equal

4    to that of repeat felony offenders for the most serious offenses

5    including murder and drug trafficking."       Id. at 113-14.    The

6    criminal history category was inappropriate, the court

7    determined, in light of "the likelihood of recidivism, the

8    difficulty of rehabilitation and the need for incapacitation."

9    Id. at 114.

10              The court found that Stewart's opportunity to repeat

11   "the crimes to which she had been convicted will be nil" because

12   she "will lose her license to practice law" and "will be forever

13   separated from any contact with Sheikh Omar Abdel Rahman."         Id.

14   Loss of her license to practice law both removes "the occasion

15   for her offenses" and "is itself a punishment."        Id. at 116.

16              The district court viewed Stewart's personal

17   characteristics as "extraordinary" and thought they "argue[d]

18   strongly in favor of a substantial downward variance."         Id. at

19   114.   The court described her as a dedicated public servant who

20   had, throughout her career, "represented the poor, the

21   disadvantaged and the unpopular, often as a Court-appointed

22   attorney," thereby providing a "service not only to her clients

23   but to the nation."   Id. at 115-16.      And "[h]aving spent her

24   professional career often representing the poor, she is now, at

25   the end of her career, financially destitute."       Id. at 115.



                                       -117-
1              The court also took into account Stewart's ill health

2    -- she had, for example, suffered from cancer, for which she had

3    undergone surgery and radiation therapy, and for which there is a

4    significant chance of recurrence.   The district court was of the

5    view that in light of those conditions and her age, 67 years old

6    at the time, prison would be "particularly difficult" for her,

7    and that at her age, moreover, her sentence would "represent a

8    greater portion of her remaining life than for a younger

9    defendant and provide increased punishment."   Id. at 117.

10             3. Analysis

11             a. The Scope of Review

12             The government's principal argument on appeal is that

13   in light of the crimes of which Stewart stands convicted, her

14   sentence was substantively unreasonable.   Section 3553(a)

15   instructs that the sentence must "reflect the seriousness of the

16   offense, . . . promote respect for the law, and . . . provide

17   just punishment for the offense" and "afford adequate deterrence

18   to criminal conduct."   18 U.S.C. § 3553(a)(2)(A) & (B).   Our

19   review for substantive reasonableness is a "particularly

20   deferential form of abuse-of-discretion review."   Cavera, 550

21   F.3d at 188 n.5 (citing Gall 128 S. Ct. at 591).   But our review

22   must also be "meaningful."   Gall, 128 S. Ct. at 597; cf. Gerard

23   E. Lynch, Letting Guidelines Be Guidelines (And Judges Be

24   Judges), Ohio St. J. Crim. L. Amici: Views From the Field (Jan.

25   2008), at http://osjcl.blogspot.com/ ("[W]e should let

26   (appellate) judges be judges . . . , performing their traditional

                                    -118-
1    function of reining in excess and gradually developing a 'common

2    law' of what is and is not sensible." (emphasis deleted)).

3              Like the district court, we are impressed by the

4    factors that figured in Stewart's modest sentence -- particularly

5    her admirable history of providing, at no little personal cost to

6    herself, proficient legal services in difficult cases to those

7    who could not otherwise afford them.   We think it noteworthy,

8    moreover, that the last of the acts for which Stewart is being

9    punished occurred a short time before the September 11 attacks on

10   the United States.   That carnage might have raised in her, as it

11   surely has in many or most of us, a heightened awareness of and

12   sensitivity to the imminent dangers of terrorism and the possible

13   scope of the deadly capabilities of the terrorists with whom she

14   was dealing.

15             We also recognize, as did the district court, that the

16   terrorism enhancement may apply to persons who are culpable in

17   substantially different degrees; that Stewart's culpability may

18   well be understood to be less than Sattar's; and that the

19   district court may differentiate between different levels of

20   culpable conduct that nonetheless trigger the same substantial

21   enhancement.   Yet Stewart's sentence is strikingly low in light

22   of what the district court correctly described as the

23   "irreducible core of [her] extraordinarily severe criminal

24   conduct," Sent'g Tr. 118, "which was committed over an extended

25   period of time, involved repeated acts of deception, and

26   involve[d] significant planning," id. at 110.

                                    -119-
1              For us to "patrol the boundaries of [the]

2    reasonableness" of a sentence imposed by a gifted and experienced

3    trial judge who has spent years intensively involved overseeing a

4    prosecution may turn out to be the legal equivalent of squaring

5    the circle.36   Yet that is what we are instructed to do.   Cavera,

6    550 F.3d at 191.    While we will not lightly substitute our

7    judgment for the carefully executed judgment of the learned trial

8    judge, we think that in light of the fact Stewart used her

9    privileged status as a lawyer to facilitate her violation of the

10   law, and possibly committed perjury at trial in an attempt to

11   avoid punishment for her conduct, her sentence at least tests

12   those "boundaries."

13             b.    Stewart's Abuse of Her Status
14                   as a Member of the Bar

15             Stewart argues that she did no more than serve as a

16   zealous advocate for her client.    That belief, if indeed she

17   harbored it, gave her no license to violate the law.    Stewart's

18   actions tended ultimately and ironically to subvert the same

19   fundamental right of which she took advantage -- the

20   constitutional right to counsel -- by making it less likely that

21   other incarcerated persons will have the same level of access to

22   counsel that her client was given.




          36
             The classic mathematical challenge of "squaring the
     circle," i.e., creating a square with the same area as a given
     circle using only compass and straight edge, was, in 1882, proved
     to be impossible. See 7 New Encyclopaedia Britannica
     Micropaedia, "Lindemann, (Carl Louis) Ferdinand von," 372 (15th
     ed. 2002).
                                   -120-
1              The district court seemed to appreciate that fact,

2    noting that Stewart "abused her position as a lawyer" in

3    committing her crimes.   Sent'g Tr. 118.   The court did not,

4    however, explain how and to what extent the sentence reflected

5    the seriousness of the crimes of conviction in light of the fact

6    that Stewart was engaged as a member of the bar when she

7    committed them.

8              The question therefore remains whether, because she was

9    an experienced and dedicated lawyer acting as such when she broke

10   the law in the manner that she did, her punishment should have

11   been greater than it was.37

12             c.   A Comparison of Yousry's and Stewart's Sentences

13             A comparison between Stewart's and Yousry's offense

14   conduct serves to highlight the seriousness of Stewart's crimes

15   and the seemingly modest sentence she received for it.    Unlike

16   Yousry, Stewart publicly disseminated "potentially lethal"


          37
             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.
                                   -121-
1    statements on Abdel Rahman's behalf.    Unlike Yousry, Stewart was

2    convicted of making false statements to the government when she

3    agreed to abide by the terms of the SAMs.   Unlike Yousry, Stewart

4    was a member of the bar and therefore acting as an officer of the

5    court.   See, e.g., United States v. Seltzer, 227 F.3d 36, 41 (2d

6    Cir. 2000).    She was legally knowledgeable, highly experienced,

7    and politically sophisticated, a lawyer acting in her

8    professional capacity; he was a student working for her and Abdel

9    Rahman as a translator.

10             Yet Yousry's sentence was 20 months; Stewart's only

11   eight months longer.

12             d.   Stewart's Alleged Perjury

13             Also unlike Yousry, Stewart may well have obstructed

14   justice at trial.   The government, supported by substantial

15   evidence, argued that Stewart committed perjury at trial.   The

16   district court summarized the argument as follows:

17             First the government contends that Ms.
18             Stewart knowingly gave false testimony when
19             she testified that she understood that there
20             was a bubble built into the SAMs whereby the
21             attorneys could issue press releases
22             containing Abdel Rahman's statements as part
23             of their representation of him.
24             The government also contends that Ms. Stewart
25             testified falsely when she denied knowing who
26             Taha was until learning about him in the
27             course of the trial except for an article
28             that she came across in her representation of
29             Yasir Ahmed.

30   Sent'g Tr. 111.   The court, having thus recited the allegations

31   at sentencing, declined to decide the issue.


                                     -122-
1              As noted, the district court gave two reasons for not

2    making such a finding.   First, it concluded that because

3    Stewart's Guidelines calculations had reached the statutory

4    maximum of 360 months, a finding of obstruction of justice would

5    not have changed the calculation.   This would be true if the

6    terrorism enhancement had been applied in Stewart's case, but the

7    district court, after determining that Stewart's conduct was in

8    the enhancement's "heartland," did not apply it.   And even were

9    it true, the question of Stewart's perjury is nonetheless

10   relevant to her sentence pursuant to section 3553.   Section

11   3553(a) requires the district court to impose a sentence

12   "sufficient, but not greater than necessary" to, among other

13   things, promote respect for the law.    See 18 U.S.C. § 3553(a)(2).

14   Whether Stewart lied to the jury under oath or upon affirmation

15   at her trial is relevant to whether her sentence was "sufficient"

16   under the circumstances.

17             The district court's second reason for declining to

18   determine whether Stewart committed perjury during the course of

19   her testimony was that it had determined that a non-Guidelines

20   sentence was "reasonable and most consistent with the factors set

21   forth in Section 3553(a)."   Sent'g Tr. 111-12.   But as noted, we

22   think that whether Stewart lied under oath at her trial is

23   directly relevant to whether her sentence was appropriate in

24   light of Section 3553(a).    Her willingness as a lawyer knowingly

25   and falsely to affirm her intention to obey the SAMs and then to

26   seek to cover up this knowing violation of the law with

                                     -123-
1    perjurious testimony, might well, if proven, influence our

2    conclusion as to the propriety of her sentence.   Any cover-up or

3    attempt to evade responsibility by a failure to tell the truth

4    upon oath or affirmation at her trial would compound the gravity

5    of her crime.

6                We conclude that by declining to decide whether Stewart

7    committed perjury or otherwise obstructed justice, the district

8    court procedurally erred.

9                4.   Remand

10               A district court's failure to find particular facts

11   will in no way impede our review in some, perhaps in most,

12   situations; this, however, is not one of them.    Especially in

13   light of the absence of a finding that Stewart did not commit

14   perjury at trial or otherwise obstruct justice, we cannot

15   determine whether her sentence was substantively reasonable.

16               We therefore remand this matter to the district court

17   for resentencing, in the course of which we direct the court to

18   determine the issue of perjury and if it finds such perjury, to

19   resentence Stewart so as to reflect that finding.    The district

20   court should also consider whether Stewart's conduct as a lawyer

21   triggers the special-skill/abuse-of-trust enhancement under the

22   Guidelines, see U.S.S.G. § 3B1.3, and reconsider the extent to

23   which Stewart's status as a lawyer affects the appropriate

24   sentence.    Upon resentencing Stewart, the district court may

25   consider, or reconsider, any additional matter that may bear

26   upon Stewart's sentence.

                                     -124-
1              Although we find no procedural or substantive error in

2    connection with the sentencing of Sattar and Yousry, we

3    nonetheless remand their cases, too.    We conclude that, inasmuch

4    as the interrelationship among the sentences of the co-

5    defendants is a principal consideration as to a proper sentence

6    of Stewart, the district court should have the ability, if not

7    the obligation, to resentence them as well.

8              After the district court completes the resentencing,

9    jurisdiction may be restored to this Court by letter from any

10   party, and the Office of the Clerk of this Court shall set an

11   expeditious briefing schedule and refer the matter to this panel

12   for further review.

13                              CONCLUSION

14             For the foregoing reasons, we affirm the conviction of

15   Stewart, but remand this cause to the district court for

16   resentencing of Stewart, see United States v. Phillips, 431 F.3d

17   86, 90 (2d Cir. 2005), and resentencing of Sattar or Yousry or

18   both if the district court determines that they should receive

19   different sentences in light of the sentence imposed on Stewart.

20   Inasmuch as the current sentences will remain in effect as to

21   Stewart and Yousry until the district court resentences Stewart

22   -- and Sattar or Yousry if it decides to do so -- and in light

23   of the fact that we affirm on all issues related to the guilt of

24   all defendants, the district court is directed to order Stewart

25   and Yousry to surrender forthwith to begin serving their terms

26   of incarceration.

                                  -125-
 1   CALABRESI, Circuit Judge, concurring:
 2
 3          I join Judge Sack’s opinion in full. I write separately to comment on our decision with

 4   respect to Stewart’s sentence.

 5          When a judge of extraordinary ability and a well-earned reputation for exceptional

 6   judgment has spent as much time on a case like this, making many decisions of tremendous

 7   difficulty—which on review we are all in agreement were correct and wisely done—even the

 8   usual deference that the Supreme Court indicated should be paid to the district court’s sentencing

 9   must constitute an understatement. This is especially so with respect to any notions as to the

10   substantive reasonableness of a sentence. We may find that there are some procedural or

11   technical matters that warrant more consideration by the district judge, such as the question of

12   whether Stewart committed perjury and the relevance of this in determining an appropriate

13   sentence, given the district court’s treatment of the terrorism enhancement. But for us—who

14   have not been involved in the case and do not know all the backs and forths, some of which may

15   even be best left not fully articulated—to second guess the district court’s judgment seems to me

16   to be precisely what both the Supreme Court and our court sitting en banc in United States v.

17   Cavera, 550 F.3d 180, 194 (2d Cir. 2008), have said we should not do. I join the majority

18   opinion because I understand it to avoid second guessing. I write here to explore some of the

19   principal issues on which this panel is divided and to give fuller expression to the importance of

20   having appellate courts appreciate the limited, though still important, institutional role we play,

21   particularly in a case such as this one, where the temptation to go beyond that role is so great.1


     1
      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


                                                       1
1                                                    I.

2          After calculating Stewart’s sentence under the Guidelines, the district court applied the §

3   3553(a) factors and concluded that the effect of the terrorism enhancement, “while correct under

4   the guidelines, would result in an unreasonable result” in this particular case. Sent’g Tr. 114.

5   The district court arrived at this conclusion based on, inter alia, (1) the somewhat atypical nature

6   of Stewart’s case for the imposition of the terrorism enhancement, and (2) the lack of evidence

7   that any victim was harmed as a result of the charged offense.2 Id. at 113. As a procedural

8   matter, each of these grounds seems to me to be well within the district court’s discretion to




    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 application of the terrorism enhancement—which “produce[d] a guideline range about
    quadruple the range without that enhancement”—would be inappropriate in Stewart’s case. Id. at
    114. 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 [26], or that
    the district court “[r]emov[ed]” Stewart from the “terrorism spectrum” because of its view that
    her crime was atypical, id. at [25]—strike me as misleading. Furthermore, in doing this, and
    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).


                                                     2
 1   consider. What is more, I would be extremely reluctant to disturb a district court’s careful effort

 2   to look to the unique circumstances of a defendant like Stewart and arrive at an individualized

 3   sentence where the Guidelines recommendation is controlled by an undeniably broad

 4   enhancement (or reduction) like the terrorism enhancement.

 5                                                    A.

 6          When the terrorism enhancement is applied, it has dramatic consequences on the

 7   applicable Guidelines range because it automatically increases both the offense level of a crime

 8   and the defendant’s Criminal History Category. In Stewart’s case, for example, the

 9   recommended sentence range without the enhancement was 78 to 97 months, while imposition of

10   the enhancement resulted in a recommended sentence of 360 months, the statutory maximum.

11   Yet as both the majority opinion and Judge Walker, in his partial dissent, recognize, the terrorism

12   enhancement casts a very broad net. In this case, that breadth was compounded by the fact that

13   the “federal crime of terrorism” for which Stewart was convicted, i.e. the provision of material

14   support, itself covers a wide range of conduct of varying degrees of culpability ranging from the

15   supply of lodging to the contribution of “weapons, lethal substances, [and] explosives.” See 18

16   U.S.C. § 2339A. When a Guidelines recommendation has such dramatic consequences and yet

17   covers a multitude of sins, unusually broad sentencing discretion in the district court is essential.

18   Indeed, it must be so to comply with the Supreme Court’s remedial holding in United States v.

19   Booker, 543 U.S. 220, 244 (2005).

20          We articulated this precise point in Cavera, recognizing that “some Guidelines

21   enhancements and reductions apply without modulation to a wide range of conduct.” 550 F.3d at

22   192. We identified as examples several financial crimes where the recommended sentence under


                                                       3
 1   the Guidelines varies dramatically according to the money involved, but the culpability of an

 2   individual defendant might not be captured accurately by a single variable like financial impact.

 3   Id. Perhaps more closely analogous to the terrorism enhancement, we pointed to the Armed

 4   Career Criminal Guidelines, under which the recommended sentences for firearms offenses

 5   increase sharply if the defendant has a prior conviction for a “crime of violence”—an expansive

 6   term that places crimes like attempted burglary of a dwelling under the same umbrella as crimes

 7   like murder and rape. See id. (citing U.S.S.G. § 2K2.1(a)). The terrorism enhancement in its

 8   breadth of coverage is akin to these examples from Cavera. The majority opinion understands

 9   this when it says that the terrorism enhancement “may apply to persons who are culpable in

10   substantially different degrees,” and that the district court “may differentiate between different

11   levels of culpable conduct that nonetheless trigger the same substantial enhancement.” Maj. Op.

12   at [119].

13          We indicated in Cavera that when a district court faces such over- and under-inclusive

14   Guidelines recommendations and when, after considering the § 3553(a) factors, it promulgates a

15   sentence that varies from that recommendation, the district court’s decision, “if adequately

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

17   Nothing we hold here should be understood to conflict with that principle, or to cast doubt on the

18   district court’s apparent conclusion that there must be much room for discretion under the

19   terrorism enhancement.3


     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


                                                       4
 1          While we have raised questions about the closeness of Yousry and Stewart’s sentences in

 2   light of Stewart’s seemingly greater level of responsibility and status as a lawyer, and while we

 3   would benefit from greater explanation by the district court on this issue, it remains the district

 4   court’s task to assess where Stewart’s criminal behavior falls along the spectrum of terrorism

 5   enhancement culpability. And I would be very reluctant—when and if I had to review a sentence

 6   in this case for substantive reasonableness—to find an abuse of discretion in a conclusion by the

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

 8   than that of other defendants subject to the terrorism enhancement.

 9                                                    B.
10
11          I am more ambivalent about the degree to which absence of harm is a valid ground on

12   which to mitigate a sentence. But I am confident that we should not preclude a district court

13   from giving lack of harm some weight, even for crimes of terrorism. Whether it is fair to assign

14   different levels of culpability in criminal sentencing to the same criminal conduct based on the

15   fortuity of whether harm results has long been a contested question in Anglo-American


     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 [27] 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 [24–25]. 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.


                                                       5
 1   jurisprudence. See H.L.A. HART , THE CONCEPT OF LAW 131 (1968) (“Why should the accidental

 2   fact that an intended harmful outcome has not occurred be ground for punishing less a criminal

 3   who may be equally dangerous and equally wicked?”). But whatever significance the

 4   consequences of a defendant’s actions ought to have, it is an inevitable part of human

 5   nature—and our law—that we as a society do give consequences considerable weight when we

 6   mete out punishment and blame.4 This is deeply entrenched in our legal system. The majority

 7   opinion identifies the law of attempts as one generally accepted instantiation of this tendency,

 8   Maj. Op. at [99–100], but there are many others—such as crimes of culpable risk creation, like

 9   vehicular homicide. And while it is true that material support to terrorism is a complete crime

10   rather than an inchoate one, and so fully punishable even if no further harm results, it simply

11   does not follow that the amount of punishment may not at least in part depend on the harm that

12   occurred. The level of punishment for a completed crime varies all the time based on the amount

13   of harm that has occurred, and the Guidelines themselves often directly embrace such a policy.5


     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).
     5
       Judge Walker identifies several examples in his opinion, though he reaches a different
     conclusion about their import. See Op. of J. Walker at [26 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 . . . .”).


                                                      6
1          Judge Walker suggests terrorism is different, and that, at least in the “very broad

2   heartland of cases,” it is procedural error for the district court to consider absence of harm as

3   relevant to the application of the terrorism enhancement and ultimately to the imposition of a

4   sentence.6 He argues that treating harm as a consideration relevant to sentencing those convicted

5   of terrorism related crimes, such as for material support, would effectively nullify the policy

6   considerations of Congress and the Sentencing Commission, who have not made reductions for

7   lack of harm part of the terrorism enhancement. Even if the Guidelines do not themselves make

8   lack of harm relevant for the application of the terrorism enhancement—and they fail to do so

9   only in the narrow sense that the enhancement does not positively reflect the existence of



    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
    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 [27 n.13]. That is true,
    but it is not relevant to the precise issue we face because the district court here agreed that the
    enhancement applied under the Guidelines. 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.


                                                      7
 1   injury—the Supreme Court has made clear that a district court, which has “greater familiarity

 2   with [] the individual case and the individual defendant,” may properly decide that sentencing

 3   judgments made by the Guidelines fail properly to reflect the § 3553(a) considerations. See Rita

 4   v. United States, 551 U.S. 338, 351 (2007).

 5          What is more, the Court has evidenced profound skepticism toward arguments that

 6   certain policy judgments, which require departing from the Guidelines, have implicitly been

 7   taken off the table as a result of congressional silence or inaction. See Kimbrough v. United

 8   States, 128 S. Ct. 558, 570–73 (2007). As the Court explained, it is usually inappropriate to draw

 9   inferences from congressional silence on sentencing practices because Congress has shown that,

10   when it wants to, it knows how to direct levels of sentencing in express terms. Id. at 571 (citing

11   28 U.S.C. § 994(h), which required Sentencing Commission to set Guidelines sentences for

12   recidivist offenders at or near the statutory maximum). As a result, the fact that Congress

13   increased the statutory maximum in 2001 for material support convictions that caused death, see

14   Op. of J. Walker at [26–27], and did so without saying anything whatever about how a district

15   court may treat harm when issuing a sentence that is less than the applicable maximum, cannot

16   be read to diminish the discretion the district court otherwise has under § 3553(a).7

17          I also rather doubt that we would be willing to apply consistently a principle that harm is

18   irrelevant in terrorism cases. Consider two potential defendants, both of whom provide funds to

19   different terrorists and have the requisite mens rea to support a conviction under 18 U.S.C §



     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.


                                                      8
 1   2239A. In one case, the terrorist whom the defendant funds attempts to detonate an explosive in

 2   a public place, but the explosives do not go off properly and so cause only a few injuries and one

 3   death that results, in part also, from inadequate medical treatment. In the second case, the

 4   terrorist’s detonation attempt succeeds, blowing up a city bus and causing a major traffic

 5   collision that kills or injures hundreds of people. While reasonable minds might differ as to the

 6   weight the level of harm should be given in this scenario, surely we would not hold it

 7   procedurally unreasonable for the district court to take the amount of harm into account when

 8   sentencing the respective defendants and—while sentencing the first severely—use it as a reason

 9   to give the second defendant a much greater sentence. Yet if that is so, the converse must hold,

10   because “sentencing discretion is like an elevator in that it must run in both directions.” Cavera,

11   550 F.3d at 194. To concede, as I think we must, that when hundreds of people are injured or

12   killed rather than just one a district court may take the amount of harm into account and impose a

13   higher sentence, but then to deny the court that same discretion to reach a lower sentence when,

14   through fortuity, no harm results, would manifestly contravene that principle.8

15

     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]. Like the majority opinion, I
     express no view, at this time, 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.



                                                       9
 1                                                     II.

 2           I have focused to this point on factors the district court may consider procedurally when

 3   sentencing, but this case also illustrates the importance of our adherence as an appellate court to

 4   the right procedure for review of district court sentences. In Cavera, we explained that our

 5   review involves a two-step process. We first ensure that the district court has not committed

 6   procedural error, and only later engage in substantive review to examine whether the district

 7   court has rendered a sentence that is one of the “exceptional cases where the trial court’s decision

 8   cannot be located within the range of permissible decisions.” 550 F.3d at 189 (internal

 9   quotations and emphasis omitted). Following this sequence of review is central to our limited

10   role. Because district courts “have an institutional advantage over appellate courts” when

11   making sentencing decisions, Koon v. United States, 518 U.S. 81, 98 (1996), our job as a

12   reviewing court is mainly to ensure that a district court’s sentence “resulted from the district

13   court’s considered judgment as to what was necessary to address the various, often conflicting,

14   purposes of sentencing.” Cavera, 550 F.3d at 189–90. Evaluating the substantive

15   reasonableness of a sentence before we have found it free from procedural defect risks the

16   substitution of our “considered judgment” for that of the district court.

17           When we identify procedural error, we have recognized the desirability of remanding to

18   the district court to let it correct its mistake and “exercise its discretion anew,” rather than

19   proceeding prematurely to review the sentence for substantive reasonableness. See Cavera, 550

20   F.3d at 190. While we have not held that this course must necessarily be followed in all

21   instances, a review of our cases makes clear that it is the ordinary and much preferred remedy.

22   See, e.g., United States v. Williams, 558 F.3d 166, 176 (2d Cir. 2009) (“In light of our decision to


                                                       10
 1   remand, we reject, as premature, [the defendant’s] challenge to the substantive reasonability of

 2   his sentence.”); United States v. Williams, 524 F.3d 209, 215–17 (2d Cir. 2008) (vacating

 3   sentence without reaching issue of whether sentence was substantively reasonable “because we

 4   conclude that the district judge committed procedural error”); United States v. Wills, 476 F.3d

 5   103, 111 n.6 (2d Cir. 2007) (“Because we hold that the sentence is procedurally unreasonable,

 6   we do not reach the government’s argument that if [the district court had not relied on

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

 8   its length alone.”) (emphasis added), abrogated on other grounds by Kimbrough, 128 S. Ct. at

 9   574–75, as recognized in Cavera, 550 F.3d at 191.

10          Other circuits have expressed a similar preference, and have sometimes stated it in even

11   more categorical terms: first remand to allow a district court to correct procedural errors and only

12   later review for substantive reasonableness.9 This is no formalism. It is consonant with our

13   system of sentencing, which asks the district court to reach a complete judgment about the

14   appropriate sentence in light of the factors enumerated in § 3553(a). Procedural errors prevent

15   the district court from properly arriving at such a holistic judgment. And in light of our

16   obligation to defer significantly to a procedurally correct sentence, we should almost always wait

17   until we have such a sentence to review before evaluating overall reasonableness.




     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).


                                                     11
 1          Judge Walker argues that judicial efficiency compels us to identify substantive error at

 2   the same time we remand for procedural error. No one wants unnecessary appeals. But I fail to

 3   see any systemic advantages from issuing advisory opinions on the reasonableness of sentences

 4   that we are vacating, and hence that are now no longer really before us. The decision to remand

 5   for procedural unreasonableness presupposes that we believe the district court might not have

 6   imposed the same sentence but for the procedural defect. See, e.g., United States v. Jass, 569

 7   F.3d 47, 68 (2d Cir. 2009) (recognizing that procedural errors in sentencing are subject to

 8   harmless error rule). When we remand for procedural flaws, it may seem inviting to comment at

 9   the same time on other factors relied upon by the district court that, though procedurally proper,

10   do not, in our judgment, bear the weight the district court attributed to them. But it is not our

11   role to weigh the individual § 3553(a) factors ourselves and to give advice to the district court as

12   to our views. See Gall, 128 S. Ct. At 602.

13          Let me repeat: Substantive reasonableness calls for review of the overall sentence, not

14   individual factors. And § 3553(a) calls for balancing all the relevant factors. As a result, any

15   non-harmless procedural errors necessarily affect the sentencing calculus. Our task is to evaluate

16   (deferentially) the district court’s finished product, and not to grade its individual ingredients. To

17   do this properly, we must almost always wait for the district court to correct the procedural errors

18   that we have identified and to explain its sentence, and only then to consider the substantive

19   reasonableness of the sentence.

20          I do not mean to suggest an absolutist view on this matter. It may be that there are cases

21   where there is procedural error that—even though it is not harmless—is sufficiently separate

22   from any serious substantive concerns that we have, so as to make it plausible to address the two


                                                      12
 1   issues at once. I cannot think of any such cases offhand, however. And, for the reasons well

 2   expressed by the majority opinion, this case is not one of them.

 3                                                     III.

 4           Another, perhaps uncomfortable, issue deserves discussion. Stewart does not appear to

 5   have been the only member of Abdel Rahman’s legal team both to agree to abide by the SAMs

 6   imposed upon Rahman and then subsequently to violate them. One of Rahman’s lawyers,

 7   Abdeen Jabara, read to Rahman newspaper articles and letters from followers, while another,

 8   Ramsey Clark, the former Attorney General of the United States, acknowledged issuing a

 9   statement to the media on behalf of Rahman.10 Yet neither Jabara nor Clark was prosecuted for

10   these apparent violations. This does not mean that the Government’s decision to prosecute only

11   Stewart was invidious or improper, and I join the majority opinion in rejecting Stewart’s claim of

12   selective prosecution. But though Stewart’s selective prosecution challenge fails, it does not

13   follow that the alleged misconduct of Jabara and Clark—whom the district court may well have

14   decided shared in certain respects the culpable behavior for which Stewart was convicted—is

15   entirely irrelevant to Stewart and to her sentence. I think it possible that it is relevant, and I

16   believe that usually only the district court is positioned to evaluate that relevance.

17           As to claims of selective prosecution, we have properly recognized that our scope of

18   review is limited, for “the decision as to whether to prosecute generally rests within the broad

19   discretion of the prosecutor.” United States v. Alameh, 341 F.3d 167, 173 (2d Cir. 2003). As the



     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.


                                                       13
 1   Supreme Court has explained, this is because “the decision to prosecute is particularly ill-suited

 2   to judicial review.” Wayte v. United States, 470 U.S. 598, 607 (1985). Yet this does not mean

 3   that unfettered (even when it is non-invidious) prosecutorial discretion over who gets charged,

 4   and for what, is categorically desirable. Quite the contrary: while prosecutorial discretion may be

 5   salutary in a wide variety of cases, when left entirely without any controls it will concentrate too

 6   much power in a single set of government actors, and they, moreover, may on occasion be

 7   subject to political pressure. The result may well be to produce disparities in the way similarly

 8   situated people are treated, disparities that our complex, Guidelines-with-district-court-

 9   discretion, system has sought to minimize. The district court’s exercise of its sentencing

10   discretion may provide the only effective way to control and diminish unjustified disparities,

11   without operating in the blunt fashion of selective prosecution judicial review. It may reduce

12   improper differences in treatment, without impinging on the executive’s obligation to enforce the

13   law.

14          Our case law provides support for this approach. For instance, while we have not

15   required a district court to consider sentencing disparities among co-defendants, we have held

16   that district courts are permitted to do so. As we explained, it is “appropriate for a district court,

17   relying on its unique knowledge of the totality of circumstances of a crime and its participants, to

18   impose a sentence that would better reflect the extent to which the participants in a crime are

19   similarly (or dissimilarly) situated and tailor the sentences accordingly.” Wills, 476 F.3d at 110

20   (internal emphasis omitted). This, as has been recognized, allows district courts to provide a

21   check against certain otherwise unbounded prosecutorial decisions, as to what charges to bring




                                                       14
 1   and as to whether to make substantial assistance motions with respect to only some defendants.11

 2   It is not much of an extension to permit the district courts to exercise analogous supervision over

 3   those decisions as to which prosecutors enjoy the greatest discretion and that result in the greatest

 4   disparities: the decisions on whether to bring any charges at all.

 5          There are, of course, many reasons for prosecutors to fail to bring charges or to bring

 6   lesser charges than they could have, and some of these reasons are clearly irrelevant to the proper

 7   sentence of the person who has been charged and convicted. But other reasons may be relevant

 8   because they may suggest arbitrariness and can lead to abuse—such as the political clout of some

 9   potential defendants as against others. We as appellate judges are ill-suited to distinguish

10   between relevant and irrelevant reasons in any given case. The same cannot be said, however,

11   for a district court judge who has presided over a whole trial in which the behavior of uncharged

12   or undercharged parties was part and parcel of the discussion.

13          This does not mean that when a district court issues a sentence that it should articulate its

14   reliance on the prosecution’s decision not to charge (or to undercharge) other parties. I am not

15   sure. While we generally ask a district court to explain the reasons behind its sentence, and


     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).


                                                      15
 1   indeed indicated in Cavera that “a district court errs if it fails adequately to explain its chosen

 2   sentence, and must include an explanation for any deviation from the Guidelines range,” 550

 3   F.3d at 190 (internal quotations omitted), there are some things that are perhaps best left unsaid

 4   by the district court, even though their potential relevance is apparent on the record.12 A

 5   prosecutor’s decision to charge only some parties rather than others may be one of these things.

 6   The district court might quite reasonably want to avoid impugning the reputation of parties who

 7   have not been indicted or tried, and hence have not had the opportunity to assert innocence in

 8   open court. But that does not mean that a judge who has presided over a full trial may not have

 9   valid reasons to conclude that the failure to charge some potential co-defendants affects, under

10   the § 3553 factors, the propriety of a sentence.13

11          I am inclined to think that the district court should not be barred from considering the

12   relevance of prosecutorial discretion in a particular case, and that our legal system should take

13   advantage of the district court’s unique position to consider a defendant’s sentence “in its

14   complete relevant context,” Wills, 476 F.3d at 110 (emphasis added). As appellate courts we

15   should therefore also keep this issue in mind when we review a district court’s sentence, and

16   recognize it as a further reason to defer to a district court’s sentencing judgments. In particular,

17   though we may properly ask the district court to explain apparent sentencing anomalies among

     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).
     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.


                                                       16
 1   convicted defendants as both the majority opinion and the partial dissent do here, we should not

 2   forget that there might be even greater disparities between a defendant and other individuals who

 3   were not charged at all.14

 4                                                     IV.

 5           Finally, I would be remiss if I did not follow the majority opinion in observing the fact

 6   that all of the acts for which Stewart was convicted occurred before the attacks of September 11,

 7   2001, an event that illustrates in particularly excruciating fashion that results do matter to us. It

 8   does not diminish the gravity of Stewart’s crimes to take judicial notice of their timing, and to

 9   recognize that our attitudes about her conduct have inevitably been influenced by the tragedy of

10   that day. To suggest otherwise, and to ignore that 9/11 has profoundly influenced our

11   retrospective assessment of the culpability of certain actions related to terrorists and terrorist

12   organizations, would be to ignore reality. As the majority opinion says, Stewart herself might

     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
     at [45 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 [45 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).

                                                        17
1   well have viewed her actions differently after 9/11 when the dangerousness of terrorism became

2   so palpable, so stark, and—most important— so proximate. See Maj. Op. at [119]. We must be

3   careful then in judging Stewart based on lessons that we learned only after her—very

4   serious—crimes were committed.15 In the end, this factor too is part of the district court’s

5   obligation to consider “the nature and circumstances of the offense,” and to impose a sentence

6   that “reflect[s] the seriousness of the offense” and “provide[s] just punishment.” See 18 U.S.C. §

    3553(a)(1)–(2).




    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, 27 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.
    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).

                                                    18
1    United States v. Stewart
2    No. 06-5015-cr

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

4          For two years, defendant Lynne Stewart, through artifice and

5    deception, and despite sworn commitments to the contrary made to

6    the government, carried out a criminal plan to transmit

7    instructions from her imprisoned client, a terrorist leader, to

8    his jihadist followers in the Middle East, including, ominously,

9    his withdrawal of support for a fragile cease-fire in Egypt, an
10   action that effectively sanctioned renewed terrorist attacks and

11   indiscriminate loss of human life.         The district court termed

12   these deliberate and horrific crimes of terrorism, for which the

13   Sentencing Guidelines recommended 30 years imprisonment,

14   “extraordinarily severe criminal conduct.”          And yet the district

15   court imposed a breathtakingly low sentence of 2 1/3 years.

16   Because the majority fails to recognize that this sentence

17   trivializes Stewart’s extremely serious conduct with a “slap on

18   the wrist” that is substantively unreasonable, and because the

19   majority fails to appreciate the full extent of the district
20   court’s numerous procedural errors,         I respectfully dissent.1

21



           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 [124], 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.
1           In imposing Stewart’s comparably insignificant sentence, the

2    district judge rejected entirely a major enhancement, established

3    by the Sentencing Commission under Congress’ express command,

4    that applies generally to the “material support” of terrorism.

5    Despite finding that Stewart’s crimes were within the

6    enhancement’s “heartland,” Sent’g Tr. 108, the district court

7    found that the “atypicality” of Stewart’s “material support”

8    conduct in “provi[ding] a co-conspirator to a terrorist

9    conspiracy” justified discarding the enhancement.    Sent’g Tr.
10   113.   But, wholly apart from the fact that the provision of

11   “personnel” falls squarely within the definition of “material

12   support” provided in 18 U.S.C. § 2339A(b), it trivializes

13   Stewart’s conduct to even suggest that enabling a jailed

14   terrorist leader, with enormous sway over his jihadist followers,

15   to actively conspire with others in a scheme to kidnap and kill

16   innocent people somehow mitigates the gravity of the crime.    The

17   district court also based its rejection of the enhancement on the

18   fact that Stewart’s conduct did not result in actual injuries or
19   death, even though that fact is rarely, if ever, a mitigating

20   circumstance, much less a reason to jettison the terrorism

21   enhancement altogether.

22          In addition to failing to make required findings on

23   obstruction of justice based on evidence of Stewart’s double

24   perjury at trial, as the majority recognizes, Maj. Op. at [122-

25   124], the district court also all but ignored Stewart’s gross

26   abuse of the fiduciary trust placed in her by the United States

                                       2
1    government, and, in the face of contrary policy statements by the

2    Sentencing Commission, gave unjustified controlling weight to its

3    mitigating view of Stewart’s age, health, and previous career.

4    Numerous additional errors attended the radical reduction of

5    Stewart’s sentence from the recommended 30 years to 2 1/3 years.

6         Section 3553(a) of Title 18 of the United States Code, which

7    governed Stewart’s sentence, requires that every sentence take

8    into appropriate account “the nature and circumstances of the

9    offense[,] and the history and characteristics of the defendant”;
10   “reflect the seriousness of the offense”; “promote respect for

11   the law”; and “adequate[ly] deter[]” similar conduct in the

12   future.   18 U.S.C. § 3553(a)(1)-(2).      The statute also mandates

13   consideration of “the need to avoid unwarr1anted sentenc[ing]

14   disparities.”   Id. § 3553(a)(6).       Recognition of the full scope

15   of the district court’s procedural errors makes plain that

16   Stewart’s sentence fails to respect these goals and is so

17   extraordinarily lenient as to manifest an abuse of discretion

18   resulting in a substantively unreasonable sentence.
19        The majority appropriately acknowledges the fine reputation

20   of the district court judge, a point with which I concur.       And,

21   like the majority, I commend the district court’s management of

22   this complex and difficult trial.       However, the majority goes on

23   to suggest, with Judge Calabresi’s concurrence being quite

24   explicit, that because of the district court’s reputation, our

25   review of the Stewart sentencing should be more deferential than

26   would normally be the case.   This court has never recognized two


                                         3
1    classes of judges – those who are so good that their judgment is

2    beyond reproach, and all the rest.   Indeed, no judge on any

3    federal court, including the Supreme Court, can lay claim to

4    infallibility.   Great respect for a particular judge cannot be a

5    basis for overlooking what, in my view, amounts to a distortion

6    of our sentencing laws.   For the foregoing reasons, and others

7    that I will describe, Stewart’s sentence must be vacated and she

8    must be resentenced.
9    I. The Defendants’ Exceptionally Serious Criminal Conduct

10        Sheik Abdel Rahman, Stewart’s client, is a dedicated

11   terrorist leader with a large jihadist following in the Middle

12   East, known as the “Islamic Group” among other names, Maj. Op. at

13   [10], and a more discrete following in the United States.    See

14   United States v. Rahman, 189 F.3d 88, 104-05 (2d Cir. 1999) (per

15   curiam).   Abdel Rahman was locked up in federal prison in

16   Rochester, Minnesota, to serve a life sentence imposed in 1996,

17   after he was convicted for both (1) trying to wreak havoc in New

18   York City by blowing up bridges, tunnels, and buildings, and (2)
19   attempting to assassinate Egyptian President Hosni Mubarak.    See

20   id. at 148.

21        For two years, 2000 and 2001, the defendants in this case —

22   Sattar, another jihadist with direct links back to Abdel Rahman’s

23   Egyptian followers; Stewart, Abdel Rahman’s lawyer; and Yousry,

24   Stewart’s student interpreter — made sure that Abdel Rahman could

25   continue to communicate with his jihadist cohorts.   The

26   Department of Justice had employed “Special Administrative

                                      4
1    Measures” (SAMs) specifically designed to prevent such

2    communications while still enabling an imprisoned terrorist to

3    speak to, and be effectively represented by his attorney.

4    Compliance with the SAMs system largely depends upon the trust

5    placed in the attorney.       In accordance with the SAMs, Stewart,

6    repeatedly swore under oath that she would not transmit any non-

7    legal communications to or from Abdel Rahman.           She swore falsely.

8    Undeterred by the SAMs, Stewart, assisted by Yousry, executed a

9    scheme of lies and deception against the government to keep the
10   lines of communication open between Abdel Rahman and Sattar, and,

11   through Sattar, the Egyptian jihadists.          These communications

12   included a declaration by Abdel Rahman that he was withdrawing

13   his support for a tenuous cease-fire that, for some time, had

14   aimed at curbing violent attacks by Abdel Rahman’s followers upon

15   targets in Egypt.2     Stewart even went so far as to deliver this

16   statement to an Arab journalist on Abdel Rahman’s behalf, which

17   resulted in the message’s wide dissemination through the media in

18   the Middle East.
19         The federal crimes committed by the defendants are numerous.

20   All three conspired to defraud the United States, in violation of

21   18 U.S.C. § 371.     Rahman, Sattar, and other jihadists conspired

22   to kill and to kidnap persons in a foreign country, in violation

23   of 18 U.S.C. § 956(a)(1), (a)(2)(A), and solicited crimes of



           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 A1.

                                           5
1    violence, in violation of 18 U.S.C. § 373.   Stewart and Yousry,

2    both individually and in conspiracy, provided and concealed

3    material support to terrorist activity — namely Rahman’s and

4    Sattar’s conspiracy to kill and to kidnap — in violation of 18

5    U.S.C. §§ 371, 2339A.   Additionally, Stewart made multiple false

6    statements to the Department of Justice and to the Bureau of

7    Prisons, in violation of 18 U.S.C. § 1001.   Such behavior

8    constitutes extraordinarily serious, indeed horrendous, criminal

9    conduct; that there was no evidence that her conduct ultimately
10   resulted in death and injury to innocent people was due to law

11   enforcement’s diligence, and not to any lack of effort by the

12   defendants or their confederates.

13        For such crimes, the advisory Sentencing Guidelines

14   effective on November 1, 2000, applicable here, provided for

15   lengthy sentences:   life imprisonment for Sattar, 360 months

16   imprisonment for Stewart, and 78 to 97 months imprisonment for

17   Yousry.   A Guidelines recommendation, of course, is just that — a

18   recommendation — and a district judge has considerable discretion
19   to sentence outside of the Guidelines.   See Gall v. United

20   States, 128 S. Ct. 586, 594 (2007).   The district court sentenced

21   the defendants well below the recommended Guidelines ranges,

22   lowering Sattar’s sentence from a recommended life term to 24

23   years, Yousry’s sentence from 78 months to 20 months, and

24   Stewart’s sentence from 360 months to a mere 28 months.

25        What is immediately striking about Stewart’s sentence is not

26   simply its extraordinary 92 percent reduction from the


                                      6
1    recommended Guidelines range,3 but also the fact that the actual

2    term of incarceration imposed — 2 1/3 years — is unprecedented in

3    convictions for material support of terrorism.4           The Supreme

4    Court has made clear that the Guidelines provide “the starting

5    point and the initial benchmark” for sentencing, and that

6    district judges must “remain cognizant of them” throughout the



           3
 1           In Gall, the Supreme Court instructed appellate courts not to use, as
 2   a general matter, “the percentage of a departure [from the Guidelines] as the
 3   standard for determining the strength of the justifications required for a
 4   specific sentence.” 128 S. Ct. at 595. This proscription recognizes that
 5   percentages cannot speak reliably across the Guidelines ranges. See id. (“The
 6   mathematical approach also suffers from infirmities of application.”). For
 7   low Guidelines ranges, even small sentencing variances can yield large
 8   percentages, unfairly exaggerating a district court’s action in imposing a
 9   non-Guidelines sentence. Id. For high Guidelines ranges, major variances can
10   yield relatively modest percentages, inaccurately representing the
11   significance of the district court’s action. That percentages cannot always
12   accurately measure a variance’s significance does not, however, mean that
13   percentages are always irrelevant. When, as here, a variance from the
14   recommended Guidelines range is extraordinarily large both in terms of the
15   actual reduction of time to be served (a 232-month reduction) and the
16   percentage of the reduction (92 percent), these facts taken together strongly
17   signal the need for careful review of the justifications advanced for the
18   challenged sentence. See id. at 597 (observing that appellate courts may
19   reasonably expect a “major departure” from the Guidelines sentencing range to
20   be supported “by a more significant justification than a minor one”).

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

                                           7
1    sentencing process.   Id. at 596, 597 n.6; accord United States v.

2    Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc).   When faced

3    with an “unusually lenient” sentence such as Stewart’s, we must

4    ensure that the district judge has offered “sufficient

5    justifications” to support his conclusion that the sentence is

6    appropriate.   Gall, 128 S. Ct. at 594.   Despite the significant

7    discretion accorded to district judges, we retain a limited but

8    important reviewing function:    We must review sentences for both

9    procedural and substantive reasonableness.
10   II.   Relevant Legal Standards

11         Our review proceeds under a “deferential abuse-of-discretion

12   standard,” Gall, 128 S. Ct. at 591, and “a district court’s

13   decision to vary from the Guidelines ‘may attract greatest

14   respect when the sentencing judge finds a particular case [to be]

15   outside the “heartland” to which the Commission intends

16   individual Guidelines to apply,’” Cavera, 550 F.3d at 192

17   (quoting Kimbrough v. United States, 128 S. Ct. 558, 574-75

18   (2007)).   However, “closer review may be in order when the
19   sentencing judge varies from the Guidelines based solely on the

20   judge’s view that the Guidelines range fails properly to reflect

21   § 3553(a) considerations even in a mine-run case.”    Kimbrough,

22   128 S. Ct. at 575 (internal quotation marks omitted); accord

23   Cavera, 550 F.3d at 192.   The basic contours of our role are as

24   follows.

25         To evaluate procedural reasonableness, we must ensure that

26   the district court, in imposing a sentence, followed the


                                       8
1   procedural steps prescribed by law.          Procedural reasonableness

2   “requires that we be confident that the sentence resulted from

3   the district court’s considered judgment as to what was necessary

4   to address the various, often conflicting, purposes of

5   sentencing.”      Cavera, 550 F.3d at 189-90.         Thus, a district court

6   commits procedural error when it fails to calculate or

7   incorrectly calculates the Guidelines range, treats the

8   Guidelines as mandatory, neglects to consider the factors set

9   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;

                       (C) to protect the public from further crimes of the
                       defendant; and

                       (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—

                       (A) issued by the Sentencing Commission . . . .

                                           9
1    erroneous factual finding.        See id. at 190.      To avoid procedural

2    error, a district court must also “adequately . . . explain its

3    chosen sentence,” including the reasons that the sentence should

4    be different (in this case, extraordinarily different) from that

5    recommended by the Guidelines, id., in order “to allow for

6    meaningful appellate review and to promote the perception of fair

7    sentencing,” Gall, 128 S. Ct. at 597.

8         We do not categorically proscribe any factor “concerning the

9    [defendant’s] background, character, and conduct,” with the
10   exception of invidious factors.         18 U.S.C. § 3661; see also

11   Cavera, 550 F.3d at 190-91; United States v. Kaba, 480 F.3d 152,

12   156-57 (2d Cir. 2007).       Still, while a district court may “take

13   into account any information known to it,” United States v.

14   Concepcion, 983 F.2d 369, 387 (2d Cir. 1992), it does not possess

15   “a blank check to impose whatever sentences suit [its] fancy,”

16   Cavera, 550 F.3d at 191 (quoting United States v. Jones, 531 F.3d

17   163, 174 (2d Cir. 2008)).        And a district court, despite its

18   discretion, cannot ignore any of the § 3553(a) factors; it must
19   consider them all, Gall, 128 S. Ct. at 596, including the

20   relevant Guidelines range and “any pertinent Sentencing

21   Commission policy statement,” Cavera, 550 F.3d at 188-89.              See

22   also 18 U.S.C. § 3553(a)(4)-(5). As we stated in United States v.

23   Fernandez:


                  (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.

                                           10
1         As long as the judge is aware of both the statutory requirements and
2         the sentencing range or ranges that are arguably applicable, and
3         nothing in the record indicates misunderstanding about such
4         materials or misperception about their relevance, we will accept
5         that the requisite consideration [of the § 3553(a) factors] has
6         occurred.
7
8    443 F.3d 19, 29-30 (2d Cir. 2006) (quoting United States v.

9    Fleming, 397 F.3d 95, 100 (2d Cir. 2005) (emphasis from Fernandez

10   omitted)).   However, if the district court has “ignored or

11   slighted a factor that Congress has deemed pertinent” in §

12   3553(a), it has abused its discretion.          United States v. Taylor,

13   487 U.S. 326, 337 (1988); Gall, 128 S. Ct. at 607 (Alito, J.,

14   dissenting); see also id. at 596 (majority opinion) (directing

15   district courts to “consider all of the § 3553(a) factors”

16   (emphasis added)).

17        In performing substantive reasonableness review, we must

18   determine whether the district court’s sentence is “located

19   within the range of permissible decisions.”           Cavera, 550 F.3d at

20   191 (internal quotation marks omitted).          “[W]e take into account

21   the totality of the circumstances, giving due deference to the

22   sentencing judge’s exercise of discretion, and bearing in mind

23   the institutional advantages of district courts.”            Id. at 190.
24   But we must accept that such discretion is not boundless.              “In

25   sentencing, as in other areas, district judges at times make

26   mistakes that are substantive. . . . Circuit courts exist to

27   correct such mistakes when they occur.”          Rita v. United

28   States,551 U.S. 338, 354 (2007).          Because the § 3553(a) factors

29   are to “guide sentencing,” the factors also “guide appellate

30   courts . . . in determining whether a sentence is unreasonable.”


                                          11
1    United States v. Booker, 543 U.S. 220, 261 (2005).    And because

2    “it is fair to assume that [the Guidelines], insofar as

3    practicable, reflect a rough approximation of sentences that

4    might achieve § 3553(a)’s objectives,” Rita, 551 U.S. at 350, our

5    judgment of a sentence’s substantive reasonableness must be

6    informed by “the extent of any variance from the Guidelines

7    range,” Gall, 128 S. Ct. at 597.

8         In light of a district court’s wide discretion in

9    sentencing, we do not “presume that a non-Guidelines sentence is
10   unreasonable.”   Cavera, 550 F.3d at 190.   But when a district

11   judge chooses to step away from the Guidelines, we “must consider

12   the extent of the deviation and ensure that the justification is

13   sufficiently compelling to support the degree of the variance.”

14   Gall, 128 S. Ct. at 597; accord Cavera, 550 F.3d at 190.    There

15   is no “rigid mathematical formula that uses the percentage of a

16   departure as the standard for determining the strength of the

17   justifications required for a specific sentence.”    Gall, 128 S.

18   Ct. at 595.   Rather, our focus on the degree of deviation is
19   derived from the “uncontroversial” proposition “that a major

20   departure should be supported by a more significant justification

21   than a minor one.”   Id. at 597.    Whatever the justification, its

22   persuasive power depends in large part on the quality of its

23   reasoning.    Accordingly, in order to determine whether the

24   sentencing court acted reasonably, we must examine how it reached

25   its conclusions, and determine how persuasive its stated reasons

26   are in supporting its exercise of discretion.    See id. at 600-02.


                                        12
1    If the district judge’s reasoning is sound, “we will not second

2    guess the weight (or lack thereof) that the judge accorded to a

3    given [§ 3553(a)] factor . . . . as long as the sentence

4    ultimately imposed is reasonable in light of all the

5    circumstances presented.”       Fernandez, 443 F.3d at 32, 34

6    (emphasis added).     We have noted, however, that “unjustified

7    reliance upon any one factor is a symptom of an unreasonable

8    sentence,” United States v. Rattoballi, 452 F.3d 127, 137 (2d

9    Cir. 2006), but only a symptom:        We must reach our decision by
10   examining the reasoning of the district court in light of the

11   totality of the circumstances, with due deference to the district

12   court’s judgment.
13   III. Stewart’s Sentence

14   A. The District Court’s Findings and Conclusions

15         In sentencing Stewart, the district court appropriately

16   began by calculating her sentencing range under the Guidelines,

17   and found it to be 360 months, the statutory maximum.6             Sent’g

18   Tr. 112.    Over Stewart’s objection, the district court found that
19   the Guidelines terrorism enhancement, U.S.S.G. § 3A1.4 (2000),

20   applied because she had committed a “federal crime of terrorism.”

21   Sent’g Tr. 107-08.      In light of the “ample evidence” showing that

22   Stewart’s “actions were calculated to affect the conduct of the

23   Egyptian government through intimidation and coercion,” the

24   district judge held that her conduct “cannot be found to be


           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 of imprisonment.

                                           13
1    outside the heartland of the enhancement.”      Sent’g Tr. 108.     The

2    district court acknowledged Stewart’s arguments that the

3    enhancement did not apply, and that its effect on her Criminal

4    History Category overstated the seriousness of her past conduct

5    and the likelihood that she would commit further crimes.         Sent’g

6    Tr. 108-09.    The district court, however, did not waver from its

7    “heartland” determination, and chose to defer consideration of

8    Stewart’s non-application and overstatement claims to its §

9    3553(a) analysis, instead of determining whether they warranted
10   departures within the Guidelines’ scheme.      Sent’g Tr. 109.

11        The district court also declined to determine whether

12   Stewart’s conduct warranted a Guidelines enhancement for her

13   potential obstruction of justice under U.S.S.G. § 3C1.1 (2000).

14   The government had urged this enhancement based upon Stewart’s

15   alleged double perjury at trial.      Sent’g Tr. 111.   The district

16   court found “evidence to indicat[e] that [Stewart’s] statements

17   were false.”   Sent’g Tr. 111.   The court nonetheless chose not to

18   consider the enhancement’s applicability, on the basis that the
19   Guidelines, because of the terrorism enhancement, already

20   provided for the statutory maximum.      Sent’g Tr. 111.   The

21   district court also noted that it believed a non-Guidelines

22   sentence would be “most consistent with the [§ 3553(a)] factors.”

23   Sent’g Tr. 111-12.

24        Stewart sought several downward departures under the

25   Guidelines.    First, she argued that she deserved a “lesser harms”

26   departure pursuant to U.S.S.G. § 5K2.11 (2000) because she


                                      14
1    committed her crime in order to avoid a perceived greater harm.7

2    Rejecting this argument, the district court found that “the

3    circumstances of this case do not diminish society’s interest in

4    punishing the conduct at issue,” and that “[t]his is not a case

5    where the interest in punishment or deterrence is reduced.”

6    Sent’g Tr. 109-10.      The district court also rejected Stewart’s

7    request for a downward departure under U.S.S.G. § 5K2.20 (2000),

8    which applies to “aberrant behavior.”         The district court refused

9    to grant this departure because Stewart’s conduct “was committed
10   over an extended period of time, involved repeated acts of

11   deception, and involve[d] significant planning.”            Sent’g Tr. 110.

12   Finally, the district court stated that it would take into

13   account Stewart’s requested departure for “extraordinary medical

14   conditions,” pursuant to U.S.S.G. § 5H1.4, when making its §

15   3553(a) determination.

16         Having found that the Guidelines called for Stewart to

17   receive the statutory maximum of 360 months, the district court

18   proceeded to its § 3553(a) analysis.         The district court cited



           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 her 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.

                                          15
1    what it believed to be “numerous factors that argue in favor of a

2    very substantial downward variance.”     Sent’g Tr. 113.   First, the

3    district court noted that “this is an atypical case for the

4    terrorism enhancement,” because “there are few, if any, cases

5    where the thrust of the violation was the provision of a co-

6    conspirator to a terrorist conspiracy.”     Sent’g Tr. 113.

7    “Moreover,” the district court explained, “there is no evidence

8    that any victim was in fact harmed as a result of the offense as

9    charged . . . .”   Sent’g Tr. 113.     The district court also found
10   the terrorism enhancement’s impact on Stewart’s Criminal History

11   Category to be “dramatically unreasonable.”     Sent’g Tr. 113.

12        The district court thus concluded that application of the

13   full terrorism enhancement, “while correct under the guidelines,

14   would result in an unreasonable result in this atypical case and

15   produce a guideline range about quadruple the range without that

16   enhancement.”   Sent’g Tr. 114.   Accordingly, the district court

17   recalculated Stewart’s Guidelines range, now without the

18   terrorism enhancement, to be 78 to 97 months imprisonment without
19   the government’s requested obstruction enhancement, and 97 to 121

20   months imprisonment with that enhancement.     Sent’g Tr. 114.    The

21   district court then stated that these ranges did not “tak[e] into

22   account the extraordinary personal characteristics of the

23   defendant[,] which also argue strongly in favor of a substantial

24   downward variance.”   Sent’g Tr. 114.

25        Noting that “[t]he personal characteristics of the defendant

26   are intertwined with several of the [§ 3553(a)] factors,” Sent’g


                                       16
1    Tr. 115, the district court then discussed at length Stewart’s

2    age, health, and career.    The district court described Stewart’s

3    career of “represent[ing] the poor, the disadvantaged[,] and the

4    unpopular,” and concluded that it was “no exaggeration to say

5    that Ms. Stewart performed a public service not only to her

6    clients but to the nation.”    Sent’g Tr. 115-16.   Although

7    acknowledging that, under the Guidelines, “prior good works are

8    not ordinarily relevant” to a defendant’s sentence, the district

9    court noted that even the Guidelines permitted “extraordinary
10   contributions [to] take a defendant outside the Guidelines

11   ra[n]ge.”    Sent’g Tr. 116.   Accordingly, the district court held

12   that Stewart’s past work warranted a “substantial downward

13   variance.”   Sent’g Tr. 116.

14        The district court then explained that Stewart’s conviction

15   would likely prevent her from ever practicing law again.       The

16   court found that this “is itself a punishment,” and “means that

17   the occasion for offenses will be removed and that a lengthy

18   sentence of imprisonment would be an excessive one . . . for
19   deterrence and protection of the public.”     Sent’g Tr. 116-17.

20        The district court noted that Stewart was 67 years old,

21   making “imprisonment . . . particularly difficult on her.”

22   Sent’g Tr. 117.   And the court found Stewart’s history of

23   overcoming cancer relevant, because she had a “statistically

24   significant chance of recurrence” and “suffers from other medical

25   conditions including sleep apnea.”     Sent’g Tr. 117.   The district

26   court acknowledged that “[m]edical care can be delivered while in


                                       17
1    prison,” but found it “clear that prison will be particularly

2    difficult for this defendant.”     Sent’g Tr. 117.

3           Despite noting that “age and physical condition are

4    discouraged factors under the guidelines,” the district court

5    concluded that, “[b]ecause imprisonment will be particularly hard

6    on the defendant, a lesser sentence than otherwise called for by

7    the advisory guidelines would be sufficient to accomplish the

8    goals of Section 3553(a)(2).”     Sent’g Tr. 117-18.   But the

9    district court reiterated that there still was ”an irreduceable
10   core of extraordinarily severe criminal conduct.”      Sent’g Tr.

11   118.   The court “point[ed] out that the offenses of conviction

12   were serious, involved dishonesty and breach of trust, and had

13   potentially lethal consequences . . . .”     Sent’g Tr. 119.

14   However, the district court felt that “the seriousness of the

15   offense d[id] not wipe out the three decades of service and the

16   other characteristics of the defendant and the particular effects

17   of the sentence on this defendant.”     Sent’g Tr. 119.

18   Accordingly, “[t]aking all of the [§ 3553(a)] factors into
19   account,” the district court sentenced Stewart to 28 months of

20   imprisonment.   Sent’g Tr. 120.

21   B. The District Court’s Procedural and Analytical Errors

22          The majority raises three issues concerning Stewart’s

23   sentence:   (1) It does not understand why Stewart’s abuse of her

24   position as a lawyer did not warrant a higher sentence, Maj. Op.

25   at [120-121]; (2) it does not understand why Stewart’s sentence

26   was only eight months longer than Yousry’s, despite her

                                       18
1    significantly more egregious conduct, Maj. Op. at [121-122]; and

2    (3) it finds that the district court procedurally erred by

3    ignoring Stewart’s potential perjury, which was relevant to her

4    sentence under § 3553(a), Maj. Op. at [122-124].    Accordingly,

5    the majority remands for resentencing, directing the district

6    court to address the perjury issue, consider the abuse of trust

7    enhancement under U.S.S.G. § 3B1.3, and resentence Stewart.    Maj.

8    Op. at [124-125].

9         Although I share the majority’s three concerns and its

10   conclusion that resentencing is required, the district court made

11   additional, and more serious, errors that the majority overlooks.

12   Notably, because the district court’s stated reasons for

13   effectively removing altogether the Guidelines’ terrorism

14   enhancement from its sentencing consideration of the seriousness

15   of the offense cannot, in fact, mitigate the seriousness of

16   Stewart’s crime, I identify procedural error in the district

17   court’s application of 18 U.S.C. § 3553(a)(2)(A).   This grave

18   error in assessing the seriousness of Stewart’s crime, moreover,

19   was compounded by the district court’s failure to account for two

20   aggravating factors plainly relevant under the Guidelines:

21   Stewart’s perjury, and her persistent and blatant abuse of a

22   position of trust to commit her crime.   See 18 U.S.C. §

23   3553(a)(4).   While the majority acknowledges these last two

24   procedural errors, its failure to recognize the error that they

25   compound minimizes the magnitude of the district court’s error in

26   identifying the seriousness of Stewart’s criminal conduct —

                                     19
1    which, in turn, contributed to other errors.

2         Without a reasonable assessment of the seriousness of

3    Stewart’s crime, the district court could not reliably determine

4    the sentence necessary to afford adequate general and specific

5    deterrence for crimes of material support of terrorism.    See 18

6    U.S.C. § 3553(a)(2)(B).   The district court’s error in assessing

7    the seriousness of Stewart’s crime further precluded a reliable

8    determination of the sentence necessary to avoid unwarranted

9    disparities with similarly situated criminals.    See 18 U.S.C. §
10   3553(a)(6).

11        Moreover, the district court’s error in assessing the

12   seriousness of Stewart’s crime prompted it to accord Stewart’s

13   age, health, and career mitigating weight that they cannot

14   reasonably bear.   The totality of these procedural errors, all

15   originating in a disturbing misunderstanding of the seriousness

16   of Stewart’s conduct, contributed to a sentence that so

17   trivializes the terrorism crimes of conviction as to present a

18   rare occurrence in this court: a sentence that cannot be deemed
19   to fall within the wide range of substantively reasonable choices

20   available to a sentencing judge.     Cf. Jones, 531 F.3d at 174.

21        1. Assessing the Seriousness of Stewart’s Crime as Required

22        by § 3553(a)(2)(A)

23             a. The Terrorism Enhancement

24        In 1994, Congress’ expressly mandated that the Sentencing

25   Commission provide for a terrorism enhancement to ensure that

26   crimes of terrorism were met with a punishment that reflected


                                     20
1    their extraordinary seriousness.             See Violent Crime Control and

2    Law Enforcement Act of 1994, Pub. L. 103-322, § 120004, 108 Stat.

3    1796, 2022.       The Commission accordingly created an enhancement

4    that operates both vertically, increasing the offense level to

5    indicate the seriousness of the crime, and horizontally

6    increasing the defendant’s Criminal History Category to reflect

7    the need for deterrence, regardless of the defendant’s prior

8    record. See U.S.S.G. § 3A1.4 (2000).8            As the majority

9    acknowledges, the Sentencing Commission “unambiguously cast a
10   broad[] net” when drafting the terrorism enhancement.               Maj. Op.

11   at [95] (quoting United States v. Mandhai, 375 F.3d 1243, 1247

12   (11th Cir. 2004)).         The import of this enhancement “could not be

13   clearer”:      It reflects Congress’ and the Commission’s policy

14   judgment “that an act of terrorism represents a particularly

15   grave threat because of the dangerousness of the crime and the

16   difficulty of deterring and rehabilitating the criminal, and thus

17   that terrorists and their supporters should be incapacitated for

18   a longer period of time.”         United States v. Meskini, 319 F.3d 88,
19   91-92 (2d Cir. 2003) (emphasis added).            Under the applicable

20   Guidelines, the enhancement increases the Guidelines sentence for


           8
               The 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
                   category from Chapter Four (Criminal History and Criminal
                   Livelihood) shall be Category VI.

     U.S.S.G. § 3A1.4 (2000).

                                             21
1    a terrorism crime to a minimum of 210 months or 17 1/2 years;

2    particularly serious crimes, such as Stewart’s, have even higher

3    sentences after the enhancement is applied.9

4          Despite finding that Stewart’s crime fell within the

5    terrorism enhancement’s “heartland,” in sentencing Stewart under

6    § 3553(a), the district court jettisoned the enhancement

7    wholesale — and from that lower platform, reduced her sentence

8    considerably further.      Effectively, the district court sentenced

9    Stewart as though she had committed no “federal crime of
10   terrorism,” U.S.S.G. § 3A1.4 (2000), at all, even though the jury

11   and the district court itself had expressly found to the

12   contrary.    I conclude that the district court manifestly abused

13   its discretion in doing so.

14         Whatever the merits of the district court’s disregard of the

15   enhancement on the basis that it overstated Stewart’s criminal

16   history, the district court’s complete elimination of the

17   enhancement’s vertical component, which entirely wiped out the

18   enhancement’s effect, cannot withstand scrutiny in light of the
19   district court’s obligation to impose a sentence sufficient to

20   reflect the seriousness of the crime of conviction.            The district

21   court offered two rationales for ignoring the terrorism

22   enhancement’s vertical effect when determining Stewart’s

23   sentence:    the “atypical” nature of Stewart’s crime, and the lack

24   of evidence of harm to victims.        Neither rationale is sustainable

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


                                          22
1    in this case.

2         First, the district court stated that Stewart’s conviction

3    was “an atypical case for the terrorism enhancement” despite

4    concluding minutes earlier that Stewart’s conduct “cannot be

5    found to be outside the heartland of the enhancement.”    Sent’g

6    Tr. 108, 113.   The “atypical” heartland conduct, the district

7    court added, was “the provision of a co-conspirator to a

8    terrorist conspiracy.”    Sent’g Tr. 113.   The district court did

9    not explain this conclusion, nor can the record support a

10   reasonable explanation.   At the outset, I question the

11   atypicality of this conduct as a mitigating factor.    Congress

12   itself has made plain that giving material support, which is a

13   crime of terrorism under the Guidelines, can be satisfied

14   entirely by the provision of “personnel.”    See 18 U.S.C. §

15   2339A(b) (including the provision of personnel in the definition

16   of “material support”).   Indeed, it is absurd and therefore

17   necessarily unreasonable to even suggest that enabling an

18   incarcerated terrorist leader with enormous influence to actively
19   conspire with others in a scheme to kidnap and kill innocent

20   persons somehow mitigates the seriousness of the crime.

21        Sheik Abdel Rahman was no ordinary “co-conspirator.”      He was

22   the head of the snake, a spiritual leader of a violent terrorist

23   group whose words carried the force of a holy writ among his

24   followers, and a man serving a life term for conspiring to bring

25   deadly chaos to New York City.   See Rahman, 189 F.3d at 103-11.

26   After Abdel Rahman’s influence had been sapped by the

                                      23
1    incarceration and isolation attending his lawful conviction,

2    Stewart’s crimes specifically targeted undoing this protection by

3    successfully enabling Abdel Rahman, as the Islamic Group’s

4    spiritual leader, to communicate with his followers and to

5    support the renewal of bloodshed.      Abdel Rahman’s unique stature

6    in the terrorist world surely renders Stewart’s crime “atypical,”

7    but this atypicality is an aggravating factor, not a mitigating

8    one, thereby making Stewart more culpable than a defendant

9    engaged in more “typical” material support, such as providing
10   money or a cache of firearms to a terrorist group.

11        Although material support of terrorism may cover a

12   “multitude of sins,” as Judge Calabresi’s concurrence states, Op.

13   of J. Calabresi at [3], this observation does no work in

14   justifying a district court’s complete disregard of the terrorism

15   enhancement, particularly in this case.     The tie that binds each

16   of the material support sins is that they promote terrorism.     The

17   procedural concern in this case is not with where Stewart’s

18   culpability falls on the spectrum: it is with whether she is
19   placed on the terrorism spectrum at all.     Removing Stewart from

20   the spectrum on account of the nature of her sins is particularly

21   egregious given that Stewart’s conduct supported Abdel Rahman, a

22   terrorist at the highest level.

23        Beyond erroneously finding mitigating atypicality in

24   “provi[ding] a co-conspirator to a terrorist conspiracy,” Sent’g

25   Tr. 113, the district judge offered no further explanation of how

26   or why Stewart’s “atypical” conduct should lessen Stewart’s

                                       24
1    culpability or contribute to the wholesale rejection of the

2    terrorism enhancement, after he had found that conduct to be

3    within the enhancement’s “heartland.”          As a result, we are left

4    only with the district judge’s bare assertion of atypicality,

5    which cannot reasonably support the complete rejection of the

6    terrorism enhancement.       See Cavera, 550 F.3d at 193.

7          The district court’s second rationale for disregarding the

8    terrorism enhancement — the absence of evidence that Stewart’s

9    terrorism crimes resulted in actual harm — is similarly flawed.10
10   Several points must be made before explaining why this reasoning

11   amounted to procedural error.        First, the absence of harm is in

12   no sense attributable to Stewart.          Alaa Abdul Raziq Atia, the

13   leader of the violent faction of the Islamic group, including

14   Abdel Rahman, was located and killed by Egyptian authorities

15   after the cease-fire was lifted but before he could act upon it.

16   Second, the district court did not simply consider the absence of

17   harm as a factor to lessen the effect of the terrorism

18   enhancement; it used that fortuity to completely eliminate the
19   effect of the terrorism enhancement, so that Stewart, in

20   substance, was punished as if she had committed no crime of

21   terrorism at all.      Third, the district court provided no reason,

22   much less a persuasive one, for why the absence of death or

23   injury should have this steep mitigating effect on Stewart’s

24   sentence.


           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.

                                           25
1            The majority, by its silence, endorses the district court’s

2    deeply flawed reliance on the fortuity that Stewart’s crimes did

3    not have the horrific consequences that she and Abdel Rahman

4    intended.    In doing so, the majority fails to appreciate the

5    unique nature of terrorism support crimes, and the enhancement

6    punishment they warrant as envisioned by Congress.            Judge

7    Calabresi’s concurrence mistakenly equates such crimes to

8    ordinary crimes and attempts, and erroneously permits the

9    district court to eliminate the enhancement altogether primarily
10   because the intended destruction of innocent life did not come to

11   pass.    Op. of J. Calabresi at [6].

12           Congress and the Sentencing Commission plainly intended for

13   crimes of terrorism to be fully punishable without regard to

14   whether, due to events beyond the defendant’s control, the

15   defendant’s conduct failed to achieve its intended deadly

16   consequences.     Such intent is plain from the many criminal

17   statutes and Guidelines unrelated to terrorism that specifically

18   account for the level or absence of injury, while the material
19   support statute and terrorism enhancement do not.11           Moreover,

20   Congress amended Stewart’s statute of conviction in 2001 so that

21   causing death increased the statutory maximum from 15 years to




           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).

                                          26
1    life imprisonment.12     Contrary to the suggestion in Judge

2    Calabresi’s concurrence that the achievement of harm cannot be an

3    aggravating factor unless the absence of such harm is a

4    mitigating factor, Op. of J. Calabresi at [9], Congress has been

5    unmistakably clear that, as a general matter, the achievement of

6    actual harm may aggravate the seriousness of a terrorism crime

7    but that the absence of such harm does not mitigate such a crime.

8    Thus Judge Calabresi’s analogy to a two-way elevator is flawed in

9    terrorism cases.

10         There can be little doubt that Congress and the Commission

11   expected the terrorism enhancement to reflect the seriousness of

12   a material support crime regardless of the absence of injury.

13   The district court’s decision to place substantial mitigating

14   weight upon the absence of harm is thus so far contrary to the

15   policy choices of Congress and the Commission that it cannot be

16   deemed reasonable under § 3553(a)(1)(A) without persuasive

17   explanation.    See Kimbrough v. United States, 128 S. Ct.558, 575

18   (2007).
19         Unremarkably, courts routinely, and unflinchingly, apply the

20   terrorism enhancement in the absence of proven harm.13            Here, the

           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.g., 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

                                          27
1    Egyptian police caught and killed Alaa Abdul Raziq Atia, a

2    violent co-conspirator, after Abdel Rahman and Stewart withdrew

3    Rahman’s support for the cease-fire, but before Atia could act on

4    that message.     This fortuity likely prevented Stewart’s crime

5    from harming victims, but “[f]ortuity has no bearing on

6    culpability,” United States v. Mitchell, 178 F.3d 904, 910 (7th

7    Cir. 1999), nor does it mitigate to any degree the seriousness of

8    Stewart’s conduct.14     Abdel Rahman himself was appropriately

9    given a life sentence even though his plans to assassinate
10   President Hosni Mubarak and to blow up bridges, tunnels, and

11   buildings in New York City were frustrated.           See Rahman, 189 F.3d

12   at 124-126.    There is no reason why fortuity should have enabled

13   Stewart, Rahman’s supporter, enabler, and co-conspirator, to be

14   sentenced as if no terrorism crimes had ever occurred.

15         In finding the district court’s heavy reliance on the lack

16   of proven harm to be reasonable, neither the majority’s opinion

17   nor Judge Calabresi’s concurrence has case law support, and I

18   have found none.     Judge Calabresi is reduced to observing that
19   attempted crimes are sometimes treated differently from completed


     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 enhancement 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.

           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.”).

                                          28
1    crimes, even when only fortuity separates the two.    Op. of J.

2    Calabresi at [5-6].     But how the law treats attempts is besides

3    the point.    As the majority itself recognizes, material support

4    of terrorism is “a substantive, not inchoate, offense.”    Maj. Op.

5    at [51].     “This is an independent crime, complete in its most

6    serious form when the [material support] is complete and nothing

7    is added to its criminality by success or consummation, as would

8    be the case, say, of attempted murder.”    Spies v. United States,

9    317 U.S. 492, 498-99 (1943).

10        Stewart completed her crime as Congress chose to define it,

11   and the Sentencing Commission, in drafting the terrorism

12   enhancement, elected not to mitigate its seriousness by rewarding

13   a defendant whose crime did not ultimately result in death or

14   serious injury with a reduced sentencing range.    It is for this

15   reason that lack of success cannot normally be a mitigating

16   factor even though achievement of harm may be an aggravating

17   factor.    Permitting a district judge to require success in

18   harming innocents before he will apply the terrorism enhancement
19   in a “heartland” case is to permit that judge to disregard the

20   fact that material support is itself a fully completed crime.

21        The majority states that “[f]ortuitous events are not

22   categorically irrelevant to the determination of a just

23   punishment nor is their consideration necessarily inappropriate.”

24   Maj. Op. at [100].     As a general matter, of course, I agree.    In

25   addition, I do not mean to suggest that there can never be a

26   terrorism case in which absence of harm might be an appropriate

                                       29
1    consideration, only that there is a very broad heartland of cases

2    in which it should not be considered.     If, for example, an

3    incompetent terrorist satisfies the enhancement by putting a

4    small amount of arsenic into a reservoir for New York’s drinking

5    water with every intention of killing thousands, but without

6    understanding that the quantity is insufficient to cause harm,

7    the complete absence of any practical possibility that the plot

8    could cause harm may well be relevant.     But, that is far from the

9    instant case, in which Stewart’s actions were designed to
10   embolden Rahman’s followers to resume a murderous jihad against

11   scores of innocent individuals in Egypt and elsewhere.     In this

12   case, it was unreasonable for the district court to place any

13   weight on the fortuitous and attenuated events that saved the

14   potential victims of Stewart’s crime, much less to use it to wipe

15   out the congressionally mandated terrorism enhancement.

16          Judge Calabresi’s attempt to defend the district court’s

17   analysis, by offering a hypothetical comparing the punishment of

18   a terrorist who succeeds in causing harm with the punishment of
19   one who does not misses the mark.      See Op. of J. Calabresi at

20   [9].   The question at issue is not whether the amount of harm can

21   never be a factor in sentencing.      It is whether the terrorist who

22   attempts to detonate a bomb in a public place, with the intent of

23   killing many innocent Americans, should be able to escape the

24   terrorism enhancement altogether simply because his plan happens

25   to fail or be foiled by authorities.     The answer, as the

26   Sentencing Commission has made clear, is no.     A more persuasive

                                      30
1    reason than the mere absence of injury must be provided by the

2    district judge who uses that factor to eliminate the terrorism

3    enhancement.   To permit a judge to completely set aside the

4    enhancement in a “heartland” case simply because the terrorist

5    did not succeed, without further explanation as to why that case

6    is sui generis, is to overlook the reality that the objective of

7    terrorism is to kill large numbers of innocent people and that

8    maximum deterrence needs to be achieved irrespective of success.

9         Actual harm is a flawed metric when determining culpability
10   in material support prosecutions.    Precisely because of the

11   devastating consequences at stake, it is, and should be, the

12   focus of enforcement authorities to make every effort to prevent

13   those consequences before they occur.   When enforcement

14   authorities are successful, it is to their great credit and their

15   efforts should in no sense lessen the deterrent effect of

16   punishment by conferring a sentencing benefit on those whose

17   efforts were thwarted.   Indeed, the House Report accompanying the

18   Comprehensive Antiterrorism Act of 1995, which criminalized the
19   material support of terrorism, explained that one of the

20   legislation’s primary goals was to “enhance [law enforcement’s]

21   capability of thwarting, frustrating, and preventing terrorist

22   acts before they result in death and destruction.”   H.R. Rep. No.

23   104-383, at 42 (1995) (emphasis added).

24        I fully recognize that district judges must develop ways of

25   distinguishing whether and why one form of material support is

26   more or less reprehensible than another, given the broad range of


                                     31
1    conduct that the material support statute criminalizes, see 18

2    U.S.C. § 2339A.   However, it makes little sense to have the

3    presence or absence of resultant harm to victims be a factor in

4    that determination.    Cf. United States v. Whiteskunk, 162 F.3d

5    1244, 1251 (10th Cir. 1998) (finding it “unfair not to recognize

6    and accommodate th[e] varying spectrum of culpability” when

7    sentencing for a “broad category of conduct” (emphasis added)).

8    Because material support providers often have been, and hopefully

9    will continue to be, apprehended before the crimes that they
10   foster come to fruition, the lack of physical injury is more

11   likely to be the norm than the exception.

12        Accordingly, the lack of injury here was not a fact of

13   “critical relevance . . . distinguish[ing]” Stewart’s conduct

14   “not only from that of all [her] codefendants, but from the vast

15   majority of defendants convicted of conspiracy in federal court.”

16   Gall, 128 S.Ct. at 600.   Giving the absence of harm mitigating

17   significance thus not only fails to recognize the extreme

18   seriousness of such crimes even without achievement of actual
19   harm, it undermines one of § 3553(a)’s express goals:

20   eliminating sentencing disparities.   See 18 U.S.C. § 3553(a)(6);

21   United States v. Simpson, 538 F.3d 459, 464 (6th Cir. 2008)

22   (noting that focusing on “the defendant’s culpability” instead of

23   fortuity when sentencing “prevents arbitrary disparities”

24   (emphasis added)).    The happenstance lack of devastating injury

25   implicit in terrorism crimes generally and Stewart’s in

26   particular simply cannot “bear the weight” the district court


                                      32
1    assigned to it.   Cavera, 550 F.3d at 191.   The district court

2    acted unreasonably by using the absence of proven harm to justify

3    completely discarding the terrorism enhancement and to support an

4    unwarranted mitigation of the seriousness of the crime of

5    conviction.   See 18 U.S.C. § 3553(a)(2)(A).

6         My colleagues in the majority also suggest that because

7    Stewart’s terrorism crimes preceded the events of September 11,

8    2001 her view of her own culpability might have been different

9    than would be true after that tragic day.    While such a lack of
10   awareness may be true of the ordinary New Yorker, such

11   attribution is ill-suited for Stewart who, as Abdel Rahman’s

12   lawyer, sat through extensive horrific evidence at his trial,

13   including that the Islamic Group was responsible for the

14   slaughter of scores of innocent tourists at Luxor and the Islamic

15   Group’s plans to bring New York to its knees by blowing up

16   buildings, bridges, tunnels, and by assassinating the Egyptian

17   President while in New York City.

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

20        After jettisoning the terrorism enhancement in assessing the

21   seriousness of Stewart’s crime of conviction pursuant to §

22   3553(a)(2)(A), the district court then noted that — with this

23   mitigation — the Guidelines would provide for a sentencing range

24   for Stewart of either 78 to 97 months or 97 to 121 months,

25   depending on whether the obstruction of justice enhancement

26   applied.   I join the majority’s view that the district court’s


                                     33
1    failure to make any findings regarding obstruction was

2    procedurally unreasonable.    Maj. Op. at [124].    The district

3    court’s reason for not making such findings was that there was no

4    point in doing so, because the terrorism enhancement took the

5    sentence to the statutory maximum.    After the district court

6    discarded the terrorism enhancement, however, the obstruction

7    enhancement became relevant to the Guidelines calculation.     In

8    addition, as the majority notes, it was error for the district

9    court not to account for Stewart’s potential perjury in the §

10   3553(a) calculus.    See Cavera, 550 F.3d at 190.

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

12        The majority properly faults the district court for failing

13   to “explain how and to what extent the sentence reflected the

14   seriousness of the crimes of conviction in light of the fact that

15   Stewart was . . . a member of the bar when she committed them.”

16   Maj. Op. at [121].    The majority asks whether, in that light,

17   “her punishment should have been greater than it was,” and then

18   suggests the obvious answer.    Maj. Op. at [121].   I agree with

19   the majority’s criticism.    As a “guardian[] of the law,” a lawyer

20   has a special obligation to “refrain from all illegal and morally

21   reprehensible behavior.”    New York Code of Professional

22   Responsibility, Preamble, EC 1-5 (effective through March 31,

23   2009).   However, the majority does not go far enough.    Stewart

24   was not just a lawyer who committed crimes.    And she did not use

25   her professional position simply to gain access to her client and

26   to carry his jihadist messages by criminal means, conduct that,

                                      34
1    as noted in the previous section of this opinion reflects an

2    extreme seriousness unreasonably overlooked by the district

3    court.    Stewart also committed her material support crimes by

4    garnering the trust of the government, and then blatantly

5    violating that trust — a fiduciary obligation that lies at the

6    core of the SAMs system and that protects the right to counsel,

7    even for convicted terrorists.

8         Under the Guidelines, the abuse-of-trust enhancement applies

9    when a defendant has “abused a position of public or private
10   trust . . . in a manner that significantly facilitated the

11   commission or concealment of the offense.”           U.S.S.G. § 3B1.3

12   (2000).   As the Commentary explains, a position of trust is

13   “characterized by professional or managerial discretion,” for

14   “[p]ersons holding such positions ordinarily are subject to

15   significantly less supervision than employees whose

16   responsibilities are primarily non-discretionary in nature,” id.

17   cmt. n.1 (2000), and “[s]uch persons generally are viewed as more

18   culpable,” id. cmt. background (2000).
19        The district court failed to explain why an enhancement for

20   abuse of trust is not plainly appropriate in this case.              The

21   majority fails to fault the district court on this score because

22   “the government did not specifically invoke section 3B1.3 in its

23   sentencing memorandum.”      Maj. Op. at [121 n.37].        But the

24   government explicitly argued for consideration of Stewart’s abuse

25   of trust at the sentencing hearing:
26        [T]he United States Attorney’s Office who was administering the SAMs
27        trusted Ms. Stewart, put their faith in Ms. Stewart that she was


                                       35
1         doing what she promised to do.      She considered that attorney
2         affirmation that she signed an oath, a promise.      Those are her
3         words. And the government accepted that commitment and believed she
4         would honor that commitment, but she violated that trust that was
5         put in her by the United States Attorney’s Office, by the Justice
6         Department, repeatedly violated [it].
7
8    Sent’g Tr. 95.    As a result, the issue was properly before the

9    district court.

10        The SAMs placed trust in Stewart because she was a member of

11   the bar appointed under the Criminal Justice Act to represent

12   Abdel Rahman, and she made explicit affirmations to the

13   government specifically required to curb her client’s ability to

14   continue terrorist activities.       Only because of the SAMs did

15   Stewart have private access to, and “significantly less

16   supervision” in her contacts with, Abdel Rahman, U.S.S.G. § 3B1.3

17   cmt. n.1 (2000), and obtain the freedom she needed to act as his

18   lawyer.   Stewart used, or more accurately abused, the trust that

19   the government placed in her to “facilitat[e] the commission . .

20   . of [her] offense,” id., furthering terrorist communications

21   that put innocent lives in jeopardy.         Stewart was only given

22   access to Abdel Rahman to discuss legal matters; instead, she

23   engaged in criminal actions that, as she conceded at trial, had
24   nothing to do with any past, pending, or future legal proceedings

25   and were unrelated to the rendering of legal advice.            See Trial

26   Tr. 7722 (acknowledging that Abdel Rahman’s “appeals [were]

27   exhausted, with no issue legally on the horizon”).

28        Stewart’s abuse of trust is particularly significant because

29   it supports the arguments of those who say that our Article III

30   courts, and the constitutional protections they afford, are not


                                          36
1    suited to terrorist trials.       See generally, e.g., Michael B.

2    Mukasey, Civilian Courts Are No Place To Try Terrorists, Wall St.

3    J., Oct. 19, 2009, at A21 (discussing the difficulties of trying

4    terrorists in Article III courts).         The SAMs are designed to

5    safeguard those rights, but they must necessarily be conditioned

6    on attorneys respecting the trust placed in them, and cannot be

7    sustained without that trust.        Stewart’s conduct thus raises

8    concerns reaching even beyond her dealings with Abdel Rahman.

9    Her criminal acts jeopardize, in a sensitive set of cases, the
10   accused’s right to his choice of independent counsel, which is

11   the right upon which the vindication of all of the accused’s

12   other rights, and, in a larger sense, the right to a trial by an

13   Article III court, depends.15

14         Section 3553(a) requires a district court to consider all of

15   the Guidelines relevant to a defendant’s conduct.            See 18 U.S.C.

16   § 3553(a)(4); Cavera, 550 F.3d at 189 (requiring a district court

17   to “conduct its own independent review of the sentencing factors,

18   aided by the arguments of the prosecution and defense”).             In
19   sentencing Stewart, the district court mentioned “abuse of trust”

20   as part of the litany of her crimes and noted that Stewart

21   “abused her position as a lawyer” in order to further Abdel

22   Rahman’s terrorist quest.       Sent’g Tr. 118.     Yet the district

           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.”).

                                          37
1    court gave no indication that it considered to any extent the

2    depth of Stewart’s abuse of trust as argued by the government,

3    which went beyond simply abusing her position as a lawyer to gain

4    access to Abdel Rahman.       By not fully responding to the

5    government’s clear and forceful argument by considering the

6    policy reflected in U.S.S.G. § 3B1.3,16 and accounting for

7    Stewart’s grave abuse of trust in assessing the seriousness of

8    Stewart’s crime and imposing its sentence, the district court

9    erred procedurally.
10         d. The Impact of These Errors on the Rest of the § 3553

11         Analysis

12         The district court’s errors in assessing the seriousness of

13   Stewart’s crime impacted other parts of its § 3553 analysis and,

14   for that reason, must be recognized if any remand in this case is

15   to yield a reasonable sentence.        Necessarily, the district

16   court’s unreasonable underappreciation of the gravity of

17   Stewart’s offense, evident from its reasoning despite its

18   statements to the contrary, infected its consideration of “the
19   need . . . to afford adequate deterrence to criminal conduct,” 18

20   U.S.C. § 3553(a)(2), and “the need to avoid unwarranted sentence

21   disparities,” id. § 3553(a)(6), because both factors are

22   calibrated by the seriousness of the offense at stake.             More

           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 . . . .”).


                                          38
1    serious crimes require greater deterrence; an unreasonably low

2    view of a crime’s severity will taint a district court’s stance

3    on whether a given sentence sufficiently deters future criminal

4    conduct, both for the specific defendant and for the public at

5    large.   In no area can the need for adequate deterrence be

6    greater than in terrorism cases, with their potential for

7    devastating loss of innocent life.         Similarly, an erroneous

8    assessment of a crime’s seriousness precludes accurate comparison

9    with equally serious crimes, to avoid unwarranted disparities.
10   Thus, although the district court’s mishandling of the

11   seriousness of Stewart’s crime constitutes reversible error on

12   its own, I believe it also infects other judgments the court made

13   in its mandatory § 3553(a) analysis.

14         2. The District Court’s Overwhelming Emphasis on Stewart’s

15         Age, Health, and Career

16         The district judge found that Stewart’s “extraordinary

17   personal characteristics . . . argue[d] strongly in favor of a

18   substantial downward variance,” Sent’g Tr. 114, and used that
19   finding to effectively set aside the Guidelines and their

20   import.17   To be sure, it was appropriate, indeed required that

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

                                          39
1    the district judge consider Stewart’s “history and

2    characteristics” under § 3553(a)(1).   But the district court

3    abused its discretion by allowing this factor to overwhelm its

4    consideration of “the need for the sentence imposed to reflect

5    the seriousness of the offense, to promote respect for the law, .

6    . . to provide just punishment for the offense, and . . . to

7    afford adequate deterrence to criminal conduct,” 18 U.S.C. §

8    3553(a)(2), and by using it to justify the deep discount of 332

9    months in Stewart’s sentence.   Indeed, given the magnitude of the
10   district court’s error in evaluating the seriousness of the

11   offense in this case, it could not reasonably determine what

12   weight, if any, to assign to personal mitigating factors.

13         Although we have no specific formula for balancing the §

14   3553(a) factors, “unjustified reliance upon any one factor is a

15   symptom of an unreasonable sentence,” Rattoballi, 452 F.3d at

16   137, and here, the district judge’s focus on Stewart’s personal

17   qualities exceeded the bounds of reasonableness in light of the

18   gravity of her crimes.   Whatever weight Stewart’s career, age,
19   and physical condition might reasonably warrant, these factors

20   cannot support an unprecedentedly lenient 28-month sentence for

21   what the district court itself termed her “extraordinarily severe

22   criminal conduct.”    Sent’g Tr. 118; see supra note 3.

23         The imposition of a 28-month prison sentence “slighted,”

24   Taylor, 487 U.S. at 337, the extreme criminality of Stewart’s




1    district judge did.

                                      40
1    offense18 and disregarded the manifest purpose of the Guidelines

2    regime:    to avoid “unwarranted sentencing disparities,” 18 U.S.C.

3    § 3553(a)(6).     See Booker, 543 U.S. at 264-65.        The Guidelines

4    “reflect a rough approximation of sentences that might achieve §

5    3553(a)’s objectives,” Rita, 551 U.S. at 350, and Stewart’s age,

6    health, and career simply cannot justify the degree to which the

7    district judge deviated from the Guidelines pursuant to §

8    3553(a).

9          The district court’s apparent disregard of “the need to
10   avoid unwarranted sentence disparities,” 18 U.S.C. § 3553(a)(6),

11   is particularly striking in light of the court’s obligation to

12   consider “pertinent [Commission] policy statement[s],” id. §

13   3553(a)(5).    For example, the Commission has determined that only

14   “an extraordinary physical impairment may be a reason to impose a

15   sentence below the applicable guideline range,” U.S.S.G. § 5H1.4

16   (2000) (emphasis added), yet the record indicates that Stewart,

17   despite medical issues, will receive appropriate medical care in

18   prison, and the district judge himself acknowledged that
19   “[m]edical care can be delivered while in prison,” Sent’g Tr.


           18
 1           The district court treated Stewart’s terrorism and fraud crimes —
 2   “particularly grave” offenses, Meskini, 319 F.3d at 92 — much more leniently
 3   than what the Guidelines recommend for bank embezzlement, see U.S.S.G. §
 4   2B1.1(b)(6)(B) (2000) (recommending a minimum range of 51-63 months for
 5   embezzlement “affect[ing] a financial institution” and resulting in over
 6   “$1,000,000 in gross receipts”), and on par with the Guidelines
 7   recommendations for criminal trademark infringement, see U.S.S.G. § 2B5.3
 8   (2000) (recommending a minimum range of 24-30 months for the manufacture of
 9   infringing items exceeding $120,000 in total retail value), conspiring to
10   steal over $5,000 of car parts, see U.S.S.G. § 2B1.1(b)(1)(E), (5) (2000) (15-
11   21 months), burgling a residence and stealing a $2,600 television, see
12   U.S.S.G. § 2B2.1(a)(1), (b)(2)(B) (2000) (27-33 months), and possessing 1.5
13   grams of crack cocaine with the intent to distribute it, see U.S.S.G. §
14   2D1.1(c)(11) (2000) (27-33 months).

                                          41
1    117.   The district judge, of course, is not bound by Commission

2    policy, but the record nowhere suggests that Stewart’s condition

3    was sufficiently compelling to distinguish her from others in the

4    prison population and to warrant any leniency on that score.     As

5    for Stewart’s age, the Commission has concluded that this factor

6    “is not ordinarily relevant in determining whether a sentence

7    should be outside the applicable guideline range[, but it] may be

8    a reason to impose a sentence below the applicable guideline

9    range in a case in which the defendant is elderly and infirm . .
10   . .”   U.S.S.G. § 5H1.1 (2000).   Again, the district court was not

11   bound by this statement.   But the district judge’s point that

12   Stewart’s sentence “will represent a greater portion of her

13   remaining life than for a younger defendant,” Sent’g Tr. 117,

14   would apply to any older defendant, and this is not an

15   extraordinary factor, such as being “elderly and infirm,” that

16   can justify excessive leniency.    See Rattoballi, 452 F.3d at 136

17   n.4, 137.   The district court cited both Stewart’s age (67 years)

18   and health (sleep apnea; cancer survivor with a chance of
19   recurrence) in concluding that “[a]ny sentence of imprisonment

20   will be particularly difficult for the defendant.”   Sent’g Tr.

21   117.   Yet as the majority notes, Maj. Op. at [26-27 n.9], Stewart

22   herself apparently did not share the district court’s misgivings:

23   “I don’t think anybody would say that going to jail for 28 months

24   is anything anyone would look forward to, but as my clients have




                                       42
1    told me, ‘I can do that standing on my head.’”19           Stewart was not

2    “elderly and infirm,” and I do not see how her age or health

3    could reasonably contribute to such a significant variance from

4    the Guidelines.     Advancing age and treatable medical conditions

5    are not normally a ticket to overwhelming leniency, and this case

6    is no different from the norm in that respect.

7          Similarly, Stewart’s career of public service, as admirable

8    as it seemed to the district court, can only go so far.             “[I]t is

9    usually not appropriate to excuse a defendant almost entirely
10   from incarceration because [s]he performed acts that, though in

11   society’s interest, also were the defendant’s responsibility to

12   perform and stood to benefit the defendant personally and

13   professionally.”     United States v. D’Amico, 496 F.3d 95, 107 (1st

14   Cir. 2007).    The district court placed emphasis on Stewart’s

15   providing legal services to “the poor, the disadvantaged[,] and

16   [the] unpopular over three decades,” Sent’g Tr. 115, but as the

17   district judge himself put it, “that credit does not extend to

18   the knowing violation of the law,” Sent’g Tr. 119.            Yet given the

19   severity of Stewart’s conduct, this credit, which contributed

20   heavily to a 332-month reduction from the recommended Guideline

21   range to a 28-month sentence, goes further than the district

22   court’s explanation can bear.        Giving such excessive weight to

23   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.

                                          43
1    particularly when her legal career, by leading the government to

2    trust her, is what enabled her to commit these crimes.

3         Overemphasizing Stewart’s career as a lawyer also fails to

4    “promote respect for the law” or “afford adequate deterrence to

5    criminal conduct” under any reasonable understanding of those

6    mandatory sentencing considerations.     18 U.S.C. § 3553(a)(2).

7    The district court found that Stewart’s likely disbarment

8    “significantly . . . mean[t] that the occasion for her offenses

9    will be removed,” Sent’g Tr. 116.     This is wrong.   One does not
10   need a law license in order to materially support terrorism or to

11   defraud the U.S. government.

12        In sum, though we will rarely identify procedural error in

13   the weight a sentencing judge assigns to relevant factors, this

14   is one of those rare cases where the record of a defendant’s

15   personal characteristics simply cannot bear the weight necessary

16   to support the challenged sentence.     See Cavera, 550 F.3d at 192.

17        3. Overall Substantive Unreasonableness

18        I by no means assume that, upon resentencing, Stewart’s
19   sentence will remain at 28 months, but I would be remiss if I did

20   not comment further on Stewart’s current sentence.     Unlike the

21   majority, I do not believe that this court must hold off on the

22   question of substantive unreasonabless until the procedural flaws

23   it identifies are remedied.    Maj. Op. at [99-100 n.33].    The

24   “informed intuition of the appellate panel” has a place in

25   appellate review.   See United States v. Rigas, No. 08-CR-3485,

26   2009 WL 3166066, at *11 (2d Cir. Oct. 5, 2009).     And in the rare

                                      44
1    instance when a sentence imposed by a district court judge makes

2    it plain that his judgment is in stark contrast with the

3    appellate panel’s intuition – as evidenced, for example, by the

4    comparative sentences of co-defendants – judicial efficiency

5    counsels us to identify the substantive error along with

6    procedural error at this time to minimize the need for subsequent

7    appeals.    This is not, as Judge Calabresi suggests, the issuing

8    of an advisory opinion.       Op. of J. Calabresi at [12].        Rather it

9    is providing a district court with the full basis for the

10   appellate panel’s remand prior to resentencing.20

11         I stress that it is not the role of the appellate court to

12   compare the district court’s sentence to what the appellate court

13   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?

                                          45
1    whether the sentence imposed by the district court is so high or

2    low that it is manifestly unjust or shocks-the-conscious.             Id.

3    We are not a mere “rubber stamp.”         Id. (citing United States v.

4    Rattoballi, 452 F.3d 127, 132 (2d Cir. 2006)).           “If we are going

5    to let (district) judges be judges, and trust them to exercise

6    the necessary discretion with sensitivity to the need for

7    coherent sentencing policy, so we should let (appellate) judges

8    be judges as well, performing their traditional function of

9    reining in excess and gradually developing a “common law” of what
10   is and is not sensible.”21      Hon. Gerard E. Lynch, Sentencing

11   After Gall and Kimbrough: Letting Guidelines Be Guidelines (and

12   Judges Be Judges), OSCJL Amici: Views From the Field 5 (January

13   2008), at http://osjclblogspot.com.

14         Even apart from the aggravating circumstances of Stewart’s

15   obstruction of justice, her abuse of trust, and her false

16   statements to the government, Stewart’s conduct was closer to

17   that of Sattar, whose 24-year sentence still represented a sharp

18   reduction from his Guidelines sentence of life imprisonment, than
19   that of Yousry.     The district court found that Stewart and Sattar

20   had engaged in conduct that warranted application of the

21   terrorism enhancement and that was “calculated to influence or

22   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.

                                          46
1    24, 28, & 108, but that student interpreter Yousry had not,

2    Sent’g Tr. 143-44.

3         Nonetheless, Stewart’s sentence was much closer to that of

4    Yousry, even though, as the district court noted, Yousry’s “role

5    in the offenses was subservient to the others involved,” Sent’g

6    Tr. 150.   Stewart was given a sentence only eight months greater

7    than that of Yousry, and in relative terms, she was treated far

8    more leniently.   Yousry’s conduct, unlike that of Sattar and

9    Stewart, was found by the district court to not warrant the
10   terrorism enhancement; nor did Yousry falsely sign the SAMs or

11   merit consideration for obstruction-of-justice and abuse-of-trust

12   enhancements.   As a result, Yousry’s Guidelines range was 78 to

13   97 months, less than one-third of Stewart’s Guidelines range of

14   360 months.   Yousry’s actual 20-month sentence represented just

15   under one-quarter of the 88-month median of his Guidelines range,

16   while Stewart’s sentence was under one-tenth of her 360-month

17   Guidelines range.    Under the Guidelines, more than 260 months

18   separated the sentences of Stewart and Yousry, yet the district
19   court chose sentences that were only eight months apart.   Like

20   the majority, I am puzzled by this mismatch, particularly in

21   light of “the need to avoid unwarranted sentence disparities.”

22   18 U.S.C. § 3553(a)(6).

23        Because Stewart’s sentence is so out of line with the

24   extreme seriousness of her criminal conduct (and, not

25   surprisingly given that fact, with what the Guidelines

26   recommend), notwithstanding the considerable deference due the


                                      47
1    district court at sentencing, I conclude that Stewart’s sentence

2    is not only procedurally unreasonable, but also substantively

3    unreasonable and an abuse of discretion.   The district court’s

4    rationale for the sentence cannot “bear the weight assigned it

5    under the totality of circumstances in the case.”   Cavera, 550

6    F.3d at 191.   Indeed, I am at a loss for any rationale upon this

7    record that could reasonably justify a sentence of 28 months

8    imprisonment for this defendant under § 3553(a).    Accordingly, in

9    addition to the procedural flaws that I have identified,
10   Stewart’s sentence should be vacated as substantively

11   unreasonable and resentencing required on that basis.




                                     48
