SACK, Circuit Judge:
Appellant Lynne Stewart appeals from a judgment of the United States District Court for the Southern District of New York (John G. Koeltl, Judge) sentencing her principally to 120 months' imprisonment following our vacatur on grounds of procedural error of her previous sentence of 28 months and remand of the district court's previous judgment insofar as it imposed that sentence. The details of this case were recounted at length in our prior opinion, United States v. Stewart, 590 F.3d 93, 100-08 (2d Cir.2009) ("Stewart I"). We repeat them here only insofar as we think it necessary to explain our judgment.
In October 1995, Sheikh Omar Ahmad Ali Abdel Rahman ("Abdel Rahman") was convicted in the United States District Court for the Southern District of New York of a variety of crimes including "soliciting the murder of Egyptian President Hosni Mubarak while he was visiting New York City; attacking American military installations; conspiring to murder President Mubarak; conspiring to bomb the World Trade Center in 1993, which succeeded; conspiring subsequently to bomb various structures in New York City, including bridges, tunnels, and the federal building containing the New York office of the Federal Bureau of Investigation ..., which did not succeed; and conspiring to commit crimes of sedition." Id. at 101. His conviction was affirmed by this Court in 1999, United States v. Rahman, 189 F.3d 88, 104 (2d Cir.1999) (per curiam), and his petition for a writ of certiorari was denied by the United States Supreme Court the following year, United States v. Rahman, 528 U.S. 1094, 120 S.Ct. 830, 145 L.Ed.2d 698 (2000).
Stewart had been a member of Abdel Rahman's legal team during his trial and his appeal. Her conviction stemmed from her repeated violations of the "Special Administrative Measures," or "SAMs," to which she agreed to be, and was, subject as a member of Abdel Rahman's legal team while he was incarcerated after his conviction had become final. Stewart executed various affirmations, under penalty of perjury, in which she agreed to abide by the terms of the SAMs, among them that she would not "use [her] meetings, correspondence or phone calls with Abdel Rahman to pass messages between third
On May 19 and 20, 2000, Stewart visited Abdel Rahman in the Rochester facility. There he dictated several messages to Stewart's translator and co-defendant, Mohammed Yousry, including "a letter to an al-Gama'a lawyer who favored the cease-fire, asking him to allow others in al-Gama'a to criticize it, and another to [a leader of the group] asking him to `escalate the language' of criticism of the cease-fire." Id. at 106. Stewart smuggled these messages out of the prison. Id. at 107.
On June 13, 2000, Stewart spoke to a Cairo-based Reuters reporter, telling him that Abdel Rahman "is withdrawing his support for the ceasefire that currently exists." Id. (internal quotation marks omitted). On June 20, 2000, after participating in a conference call with Abdel Rahman, Stewart sent a fax to the Reuters reporter reaffirming Abdel Rahman's previous statement withdrawing his support for the ceasefire. Id.
On April 8, 2002, Stewart was indicted for her actions related to Abdel Rahman's communications to and from prison. A superseding indictment was filed on November 19, 2003. Id. at 108. On February 10, 2005, following a jury trial, Stewart was convicted of conspiring to defraud the United States in violation of 18 U.S.C. § 371 by violating SAMs imposed upon Abdel Rahman to which she had agreed to be bound; providing and concealing material support to a conspiracy to kill and kidnap persons in a foreign country, in
Stewart appealed from the judgment of conviction; the government cross-appealed as to her sentence. We affirmed the judgment in all respects, except insofar as we concluded that the district court had committed procedural error in the course of Stewart's sentencing. We remanded for her resentencing. Id. at 151-52.
We further noted a lack of clarity in the record as to whether the district court had actually applied the terrorism enhancement in its Guidelines calculation. We observed, however, that "in light of the facts of this case and the judgments of conviction ..., [it] plainly applies." Id. at 150.
"Finally, [we directed that] the district court ... further consider the overall question whether the sentence to be given is appropriate in view of the magnitude of the offense...." Id. at 151. While we did not preclude the imposition of a non-Guidelines sentence, "we [did] require that such a sentence, selected after the reconsideration we [had] directed, begin with the terrorism enhancement and take that enhancement into account." Id.
We noted our "serious doubts that the sentence given was reasonable" in light of our view of the seriousness of the crimes. Id. But we elected to allow for resentencing before reaching the question of substantive reasonableness. Id.
After remand, on July 15, 2010, the district court resentenced Stewart. It explicitly applied the terrorism enhancement, explaining that Stewart's actions were "calculated to affect the conduct of the Egyptian government through intimidation and coercion," and that the jury had found that Stewart "possessed the specific intent to provide Abdel Rahman as a coconspirator in a conspiracy to kill." Tr. of Sentencing Hearing in United States v. Stewart, No. 02 CR 395(JGK) (S.D.N.Y. July 15, 2010) ("Stewart II"), at 41-42.
The court then concluded that the obstruction-of-justice enhancement applied because "[t]he defendant [had] made a series of statements at trial that were clearly false concerning a material matter that were made with the willful intent to provide false testimony." Id. at 45-52. The court also determined that the abuse-of-trust enhancement was applicable inasmuch as Stewart "was able to participate in smuggling messages into and out of the prison because of the trust placed in her as the attorney for Sheikh Rahman." Id. at 53. Taking these enhancements into account, the court determined that Stewart's Guidelines sentence was 360 months, which was also the statutory maximum.
After evaluating the applicability of the terrorism enhancement, the perjury it
Stewart appeals from the imposition of that sentence, arguing primarily that the district court's consideration of her post-sentencing statements violated her First Amendment right to freedom of speech, and additionally that the court erred in applying the obstruction-of-justice and abuse-of-trust enhancements. Stewart also argues that the 120-month sentence is substantively unreasonable.
We disagree in each respect, and therefore affirm.
We review the district court's application of the Guidelines de novo and its factual findings for clear error. United States v. Watkins, 667 F.3d 254, 261 (2d Cir.2012). The district court commits procedural error in sentencing if, for example, it fails to calculate the Guidelines range, incorrectly calculates the Guidelines range, does not properly consider the factors set forth in 18 U.S.C. § 3553(a), or makes factual findings that we conclude are clearly erroneous. Id.
When reviewing for the substantive reasonableness of a sentence of imprisonment, we examine "the length of the sentence imposed." Id. (alteration omitted). We will reverse it on the basis of its magnitude only when the sentencing decision "cannot be located within the range of permissible decisions." Id. (internal quotation marks omitted).
Stewart's principal argument on appeal is that her statements to the public and the press subsequent to her initial sentencing were impermissible bases for more than quadrupling her sentence upon remand. On resentencing, the district court explicitly considered two statements that Stewart made after the imposition of her original sentence.
During her resentencing proceedings, Stewart characterized these remarks as "intemperate at best," but contended that they were taken out of context — they were meant to indicate only that she was relieved at being given a sentence that was such a small fraction of her Guidelines sentence. Stewart II, at 61. But the district court understood them to "indicate[ ] that the defendant did indeed view the sentence as a trivial sentence." Id. Referring to the language of 18 U.S.C. § 3553(a)(2)(A), the court explained that a sentence viewed as trivial "would not be sufficient to reflect the seriousness of the offense, promote respect for the law and provide just punishment for the offense as required by law." Id.
Stewart made the second statement during a November 18, 2009, television interview. She was asked: "[W]ould you do anything differently back then, if you knew what you knew today?" She responded:
J.A. 340-41 (emphasis added).
At her subsequent resentencing, Stewart explained that when she said she would "do it again," "`it' has always been about representing my clients with selfless ... compassion, putting their needs before my own.... Would I do it again? When the `it' means compassionately represent my client, the answer is, I would." Stewart II, at 12-13. The district court concluded that her statement "indicate[d] a lack of remorse for conduct that was both illegal and potentially lethal," and supported a finding "that the original sentence was not sufficient to accomplish the purposes of section 3553(a)(2), including to reflect the seriousness of the offense and to provide adequate deterrence."
Stewart asserts that the First Amendment forbade the district court from using her public statements on public issues as a basis for punishing her. She refers to the court's actions as, in substance, punishment for her protected speech, which is generally forbidden by the First Amendment. But Stewart was not punished for violating a governmental restriction on speech. The district court did not treat her speech as a violation of any law — it considered the content of that speech to be helpful in enabling the court to craft a sentence "sufficient, but not greater than necessary, to comply with the purposes set forth" elsewhere in the statute. 18 U.S.C. § 3553(a). These "purposes" include "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense." Id. at § 3553(a)(2)(a). She was punished, in light of that assessment, not for unlawful speech, but for her crimes of conviction: conspiracy to defraud the United States; conspiracy to provide and to conceal the provision of material support to a conspiracy to kill and kidnap persons in a foreign country; providing and concealing the provision of material support to a conspiracy to kill and kidnap persons in a foreign country; and making false statements to agencies of the United States.
We begin with several principles that are well-settled or, we think, self-evident. First, a district court is required to sentence a convicted defendant based in part on his or her "history and personal characteristics." See United States v. Perez-Frias, 636 F.3d 39, 43 (2d Cir.2011). Second, a person's history and personal characteristics can often be assessed by a sentencing court only or principally through analysis of what that person has said — in public, in private, or before the court. But, third, the First Amendment generally assures citizens "the freedom of speech" from encroachments by federal or state government.
There is an apparent tension between the first and second principles, on the one hand, and the third principle on the other. It lies at the heart of the First Amendment argument made by Stewart here. For where, as here, a district court seeks to assess a convicted defendant's history and personal characteristics through consideration of his or her speech and sentences
We conclude, though, that irrespective of any such limitation on Stewart's ability to speak as she wished, her First Amendment rights were not abridged. The sentencing judge was determining the characteristics of the defendant, which were legally relevant to a determination of the appropriate sentence to impose on Stewart, through the contents of statements she voluntarily and publicly made. "The First Amendment `does not erect a per se barrier' to the admission at sentencing of evidence regarding the defendant's [otherwise protected beliefs, association, or speech]. A sentencing court may consider such evidence so long as it is `relevant to the issues involved' in the sentencing proceeding." United States v. Kane, 452 F.3d 140, 142 (2d Cir.2006) (per curiam) (quoting Dawson v. Delaware, 503 U.S. 159, 164-65, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992)).
In Kane we addressed an argument similar to Stewart's. There, the defendant claimed that the sentencing court violated the First Amendment by "weighing [the defendant's] prior published writings against the mitigating character evidence he offered at sentencing." 452 F.3d at 141. Kane had pled guilty to a scheme to defraud the Federal Housing Administration and Department of Housing and Urban Development. In support of his request
We observed:
Id. at 143 (internal quotation marks omitted). "[B]ecause much of Kane's writings concerned illegal real estate schemes, which related directly to his offense of conviction, the writings also may indicate the increased likelihood of recidivism or a lack of recognition of the gravity of the wrong." Id. (internal quotation marks omitted).
In United States v. Bangert, 645 F.2d 1297 (8th Cir.1981), the circuit court examined the sentences of two individuals who had been convicted of theft and destruction of government property for stealing a United States flag from a flagpole on a federal building and later burning it "to protest involvement of the United States in the internal affairs of Iran." Id. at 1300. Both defendants received the maximum sentence — one year's imprisonment and a $1,000 fine. Id. at 1306.
The court explained that "[c]onsideration of political beliefs, as distinguished from criminal activity, would clearly be impermissible in determining defendants' sentences, because it would impair the rights of the defendants under the First Amendment, protecting public expression of their political beliefs, by words and symbols." Id. at 1308. In that case, however, the district court was explicit:
Id. The circuit court concluded that the district court had not rested its sentencing decision on the defendants' speech, but instead upon the defendants' "lack of truthfulness and lack of remorse." Id. (emphasis added).
The court overturned the defendant's sentence because the prosecution did "little more than ... attempt to establish guilt by association through an accumulation of uncorroborated suspicions. It [did] not appear from the record that the government [was able to] demonstrate a single direct link between the defendant and illegal activity by known members of [the organization of which the defendant was a member]." Id. at 941. The court thus identified a First Amendment violation. But it explicitly acknowledged (albeit necessarily in dicta) that the defendant's otherwise protected association could have been considered in sentencing if that association was specifically tied to illegal aims. In other words, the district court was not barred from considering what it might have otherwise legitimately considered — the defendant's support for illegal activity — solely because that support might have been related to beliefs or association otherwise protected by the First Amendment.
We again emphasize the complete bar on the use of protected speech, belief, or association at sentencing for the purpose of punishment based on the feature that warrants its First Amendment protection. It is impermissible to sentence a defendant more harshly based on associations that do not relate to specific criminal wrongdoing, for example, or for beliefs that some might find morally reprehensible, or for critical statements made in public because they were made in public.
Stewart does indeed argue that she was prosecuted and punished for her political beliefs. The most obvious — and fatal — shortcoming in Stewart's argument in the context of this appeal is that there is not a hint in the record of any fact to support an assertion that the district court did so. And we are, parenthetically, at a loss to understand why Stewart thinks that the district judge's views of her politics changed drastically for the worse between 2006, when he gave her a sentence so light compared with her Guidelines sentence that she expressed her profound relief (as reflected in her public "I can do that standing on my head" comment), and 2010, when the court imposed the higher sentence, still one-third of the Guidelines minimum, of which she now complains. The court was properly concerned about whether she considered her previous sentence to have been "trivial," and whether she had remorse for her acts adjudged to be serious crimes, not about any political views of hers that may or may not have played a part in her commission of the crime or her reaction to her conviction and sentence.
Finally, underlying Stewart's argument is the suggestion that her sentence was set at a higher level principally because of her public statements. The significance of that assertion is questionable — it is not clear why a considerable increase in sentence based entirely on the defendant's lack of remorse and her consideration of a lower sentence as "trivial" would be improper. But in any event, the suggestion is false. In Stewart I, we remanded with the explicit direction that the district court would apply the terrorism enhancement, determine whether the abuse-of-trust and obstruction-of-justice enhancements applied, and "consider the overall question whether the sentence to be given is appropriate in view of the magnitude of the offense." Stewart I, 590 F.3d at 151. The district court was permitted to consider Stewart's lack of remorse and view of the seriousness of her previous sentence in arriving at an appropriate new sentence pursuant to section 3553(a), as we have explained, but the increase in her sentence was based on consideration of myriad other factors not properly or fully addressed at her previous sentencing. Of the 42 pages of transcript containing the district court's resentencing and its statements of the reasons therefor, barely more than a page, Stewart II at 61-62, is devoted to a discussion of the speech at issue here and its consequences for sentencing purposes.
Stewart argues that her statements at issue were on matters of "public concern," Def.'s Br. at 58 & n.15, and "speech on matters of public concern is at the heart of the First Amendment's protection." Snyder v. Phelps, ___ U.S. ___, 131 S.Ct. 1207, 1215, 179 L.Ed.2d 172 (2011) (internal quotation marks and alterations omitted). Because of the public's interest in defendants speaking out in the manner in which Stewart did, the Court should be wary of stifling similar speech, which, she argues, would be the result of allowing the stiffer sentence she received here to stand. To make this point, she relies upon related First Amendment jurisprudence. She cites, for example, Hotchner v. Castillo-Puche, 551 F.2d 910 (2d Cir.1977), a case in which we held that the plaintiff in a defamation and invasion of privacy suit had failed to establish "actual malice," for the assertion that "[a]ny risk that full and vigorous exposition and expression of opinion on matters of public interest may be stifled must be given great weight. In areas of doubt and conflicting considerations, it is thought better to err on the side of free speech." Id. at 913; see also Def.'s Reply Br. at 8-9.
As we have noted, though, if the question before us were permissibility of a statute or other governmental regulation under which Stewart's speech had indeed been punished, "strict scrutiny" might well be applicable, see supra note 11, and the deterrent — "chilling" — effect of the restriction might require our careful consideration. That is not this case, however, and Stewart's repeated cries of "chilling effect" therefore avail her little.
Although employed by courts for more than fifty years,
Professor Schauer offered a "tentative definition" of the term: "A chilling effect occurs when individuals seeking to engage in activity protected by the first amendment are deterred from so doing by governmental regulation not specifically directed at that protected activity." Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the "Chilling Effect," 58 B.U. L. Rev. 685, 693 (1978) (emphasis omitted). He used as an example "a statute which is directed at hard-core pornography [that] has the actual effect of deterring an individual from publishing the Decameron or Lady Chatterly's Lover." Id.
There is no such "governmental regulation" of speech at issue here,
It is not the law that any action by an agent of government that has a collateral deterrent effect on protected speech ipso facto violates the First Amendment. There is no authority for the general proposition that underlies Stewart's argument: that the government cannot use the contents of voluntary public speech to the speaker's disadvantage despite the likelihood
Stewart makes a related argument to the effect that the district court was forbidden to interpret her statements as it did — to indicate a lack of remorse and her view that the sentence she received was trivial — in light of her alternative explanations as to the meaning of those statements. "[B]ecause of the importance of free speech, Ms. Stewart is certainly entitled to the benefit of the doubt where there are two conflicting views or interpretations of what she said. Under the First Amendment, any ambiguities must be resolved in favor of sustaining the protected speech." Def.'s Br. at 75.
Assuming the statements were ambiguous — a questionable proposition, especially with regard to the meaning of the statement "I would do it again" — we know of no law or legal principle to support a conclusion that the district court was not permitted to use its informed best judgment in determining whether the speech in question disclosed that Stewart considered a 28-month sentence "trivial," or demonstrated a lack of remorse for the crimes she committed — clearly a factor that the court was permitted to take into account in sentencing. See, e.g., Martinucci, 561 F.3d at 535; United States v. Fernandez, 443 F.3d 19, 33 (2d Cir.2006).
Wide latitude is afforded to sentencing courts in crafting sentences "sufficient, but not greater than necessary" to achieve the sentencing objectives set forth by Congress. 18 U.S.C. § 3553(a); see 18 U.S.C. § 3553(a)(2)(A)-(B) ("[The district court] shall consider the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense [and] afford adequate deterrence to criminal conduct."). And "[n]o limitation [is permitted] on the information concerning
The district court acknowledged this latitude in rejecting Stewart's argument that the First Amendment barred consideration of her post-sentencing statements. "[T]he Court can take into account, for purposes of sentencing, the truth of the defendant's comments about the sentence and the degree of her remorse in the way that courts allow defendants to speak at sentencing and consider those statements." Stewart II, at 62. Were we to read the Constitution to prohibit the consideration of a defendant's statements solely because they were only arguably unfavorable to the defendant's position, as Stewart urges, we would take away from the district court the ability fully to assess facts bearing on the defendant's state of mind in accordance with the requirements of section 3553, which enables the court to impose a sentence fair to both the defendant and society. We have been given no sound reason to do so.
Stewart also argues that the district court erred in applying the obstruction-of-justice enhancement. The Guidelines allow for such a two-level enhancement if "the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction." U.S.S.G. § 3C1.1. In order to impose the enhancement, "a sentencing court must find that the defendant 1) willfully 2) and materially 3) committed perjury, which is (a) the intentional (b) giving of false testimony (c) as to a material matter." United States v. Zagari, 111 F.3d 307, 329 (2d Cir.1997). "A witness testifying under oath or affirmation [commits perjury] if she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory." United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993).
The district court must find each of the elements to be present by a preponderance of the evidence. See United States v. Salim, 549 F.3d 67, 75 (2d Cir. 2008). The court's findings of fact that, for example, a statement was intentional or false, must be upheld unless clearly erroneous. Id. at 74.
The district court outlined in detail seven statements that it concluded constituted perjury and warranted the obstruction-of-justice enhancement. They fall into three general categories: A) that Stewart believed, notwithstanding the literal language of the SAMs, that she was allowed to take the actions that she did; B) that she did not participate in a conspiracy with her co-defendants; and C) that she did not know the identity of Rifa'i Taha Musa ("Taha"), also known as "Abu Yasir," "a military leader of al-Gama'a, a follower of Abdel Rahman, and an unindicted co-conspirator," Stewart I, 590 F.3d at 103.
The first category of statements that the district court concluded were perjurious and warranted the enhancement related to Stewart's "assertion that she believed that she was complying with the SAMs because the attorneys operated in a `bubble' and that, consequently, she did not violate the SAMs or sign the false affirmation." Stewart II, at 45. Four specific statements supported the district court's
Stewart contends on appeal that because her issuance of press releases and her making of other statements to the public relaying Abdel Rahman's statements were incidental to her "effective representation" of Abdel Rahman, they were allowed "notwithstanding the language" of the SAMs. Def.'s Br. at 81. She asserts that she did not believe the literal language of the SAMs was binding because her co-counsel Ramsey Clark and Abdeen Jabara were "openly and notoriously" violating the SAMs, and had not been subject to repercussions for their violations. Id. at 81-82. In addition, Stewart contends that her view was buttressed by the fact that, after her 2000 statement to Reuters, the government continued to allow her to visit Abdel Rahman. Id. at 83.
Stewart does not assert that her actions were allowed by the literal language of the SAMs. They were not. She argues instead that at the time she took actions in literal violation of the SAMs, a kind of "estoppel" applied, and that as a result, she could not be prosecuted for taking them. Therefore, she argues, her statements to that effect were not false, and cannot support the obstruction-of-justice enhancement.
As the district court explained, Stewart's actions belied this argument. She repeatedly exhibited behavior demonstrating that she understood her actions to be in violation of the law and that she could face consequences, including criminal prosecution, as a result of them. For example, she made "covering noises while the messages were read or responses by Sheikh Rahman were dictated"; during the May 2000 prison visit she and Yousry acknowledged they would be "in trouble" if the guards discovered they were reading messages from Taha to Abdel Rahman, and upon their return for a second visit in May 2000 left a similar message in the car for fear of them being searched and it being discovered; she acknowledged when speaking to Reuters that the statement might cause her to be banned from visiting her client; and she told Yousry she was "risking her whole career" by issuing the press release. Stewart II, at 46-47. After receiving a letter from then-Assistant United States Attorney Patrick Fitzgerald informing her that her actions in publicly disclosing Abdel Rahman's withdrawal from the ceasefire were in violation of the SAMs, Stewart signed another affirmation agreeing to abide by them. In July 2001, she nonetheless again violated the SAMs. Id. at 48.
In light of these facts, the failure of the government to seek to prosecute Clark and Jabara has little relevance to the question whether Stewart is being punished inappropriately for violation of the SAMs. And some of their actions that Stewart points to, such as Clark's 1997 issuance of a press release expressing Abdel Rahman's support for the ceasefire, took place before the SAMs prohibited such actions. Clark and Jabara did indeed refuse to issue any public statement from Abdel Rahman withdrawing his support for the ceasefire. See Stewart I, 590 F.3d at 105. As the district court explained, "the defendant's
Finally, the district court concluded that Stewart had testified falsely when she said she had not signed false affirmations pledging to abide by the SAMs. A statement of this type that is inconsistent with a jury's finding, as it was here, can support an obstruction-of-justice enhancement. See United States v. Bonds, 933 F.2d 152, 155 (2d Cir.1991) (per curiam) (concluding that the jury finding the defendant acted with knowledge contradicted his factual assertion that he had not done so), superseded on other grounds by regulation as recognized in United States v. Castano, 999 F.2d 615, 617 & n. 2 (2d Cir.1993) (per curiam).
The district court considered Stewart's arguments and evidence to the effect that the statements it identified were not false because she genuinely harbored the belief that her conduct was not in violation of the SAMs, even if it was literally prohibited by them. The district court found by a preponderance of the evidence that her statements were false based largely on her contemporaneous statements and actions demonstrating her understanding that she was engaged in illegal activity, and the jury's finding that she acted with knowledge. We see nothing in the record to the contrary. The district court's findings were not "clearly erroneous."
The district court also decided that the obstruction-of-justice enhancement was justified by Stewart's statements "that she did not believe that she `conspired with anyone to defraud the United States of America, the Department of Justice and the Bureau of Prisons out of its right to have the SAMs applied and enforced,'" and "that she did not `believe that there was a conspiracy that involved Mr. Sattar or this fellow Taha and others to kill or kidnap people in a foreign country' and did not make `Abdel Rahman available to any conspiracy to kill or kidnap people.'" Stewart II, at 49. These statements, the district court concluded, "were necessarily inconsistent with the jury's finding of guilt and were false testimony concerning material matters that cannot be ascribed to mistake, inadvertence or faulty memory." Id.
Stewart argues that these statements cannot support an obstruction-of-justice enhancement because they were expressions of opinion as to her guilt or innocence — before she was in fact found guilty or acquitted of anything. To be sure, an obstruction-of-justice enhancement would have been in error had she done no more than proclaim herself "not guilty." See, e.g., United States v. Scop, 940 F.2d 1004, 1012 (7th Cir.1991) ("Statements relating to one's own guilt, prior to conviction, are considered statements of opinion and cannot be perjurious."); United States v. Endo, 635 F.2d 321, 323 (4th Cir.1980) ("[A] [c]onviction for perjury cannot be sustained solely because the defendant gave inconsistent answers to the question, `are you guilty?' To be false, the statement must be with respect to a fact or facts and the statement must be such that the truth or falsity of it is susceptible of proof." (internal quotation marks and alteration omitted)). Stewart's statements were not, however, limited to a denial of guilt — they were directly related to specific underlying conduct: She denied knowledge of or participation in the conspiracy. The jury found to the contrary that she knowingly participated in it.
In Bonds, 933 F.2d at 155, we concluded that a defendant who testified that he did not know that money he distributed was
Id. (emphasis omitted).
Here, as in Bonds, the jury's findings of guilt on Count One, charging conspiracy to defraud the United States, and Counts Four and Five, charging material support of terrorism, each required the jury to find that Stewart's actions were undertaken knowingly. The jury's findings contradicted Stewart's factual testimony to the effect that she did not engage in this conduct, or at least did not do so knowingly. The court's decision on this score was not clearly erroneous.
The district court also concluded that Stewart's testimony that between 1996 and 2000 she did not know the name "Taha," and that during the May 2000 prison visit she did not know who "Abu Yasir" was, supported the obstruction-of-justice enhancement. Stewart II, at 50. In making this finding, the district court noted that Stewart testified that she had seen the name Taha in an article in connection with her representation of another defendant prior to 2000, but had filed the article away and forgotten about it. Id. Stewart acknowledged having arranged before her May 2000 visit to Abdel Rahman for translation of an article explaining that Taha and Abu Yasir were one and the same, and describing Taha's role in the Egyptian Islamic movement. Id. Stewart also acknowledged that Yousry translated all correspondence and documents that would be provided to Abdel Rahman in advance of each visit, as well as after each visit, all correspondence dictated by Abdel Rahman. During the May 2000 visit, Yousry read a statement from Abu Yasir identifying him as a leadership member of the militant group, and describing him as someone with "massive weight" who "the regime worries about" to the extent it worries about anyone. Id. at 51. One newspaper article that Stewart approved for reading to Abdel Rahman contained belligerent statements by Taha and explained who he was; another said that he was also known as Abu Yasir. Stewart also acknowledged having read an article, which she later sent to Sattar and Yousry, that described a videotape made by Osama bin Laden, Ayman al-Zawahiri, and Taha calling for the release of Abdel Rahman. Id.
Based on this evidence, the district court rejected Stewart's assertion that she did not remember who Taha was because she was a "busy lawyer." Id. "[T]he references to Taha were numerous enough and significant enough that her testimony that she had not heard of Taha until the trial" constituted perjury sufficient to warrant the obstruction-of-justice enhancement, as were her statements "that she did not know who Abut Yasir was at the time of the May 2000 prison visit and that the name had no meaning for her." Id. at 51-52.
Stewart argues on appeal that "[n]owhere in the hundreds of hours of recordings or in any of the documents admitted at trial is there any direct evidence that Ms. Stewart knew Taha's connection to [al-Gama'a or] that anyone ever spoke of him and his role in English in Ms. Stewart's presence." Def.'s Br. at 94. She acknowledges
The district court's conclusion that Stewart must have known who Taha was, and that his alias was Abu Yasir, finds sufficient support in the record. The district court noted the specific instances in which Stewart was known to have approved messages or articles containing information about Taha. It seems unlikely that Stewart was unaware of the existence and identity of a person — Taha — who had appeared on a videotape with bin Laden and al-Zawahiri to demand Abdel Rahman's release. Taha was a key figure in the events unfolding in Egypt to which Abdel Rahman was a central player, and Taha was in direct contact with Stewart's co-defendant Ahmed Abdel Sattar. We conclude that the district court's finding by a preponderance of the evidence that Stewart's statements denying knowledge of Taha were false was not clearly erroneous.
Stewart objects to the district court's imposition of the abuse-of-trust enhancement, which applies "[i]f the defendant abused a position of public or private trust ... in a manner that significantly facilitated the commission or concealment of the offense." U.S.S.G. § 3B1.3. The "applicability of a § 3B1.3 enhancement turns on the extent to which the position provides the freedom to commit a difficult-to-detect wrong." United States v. Allen, 201 F.3d 163, 166 (2d Cir.2000) (internal quotation marks omitted).
In imposing this enhancement, the district court explained that:
Stewart II, at 53 (internal quotation marks and citation to transcript of original sentencing hearing omitted).
Stewart contends that "any finding that Ms. Stewart `abused trust' is dependent on whether the government explicitly or implicitly sanctioned the conduct upon which the enhancement is based." Def.'s Br. at 99. Stewart argues, as she did in contesting the obstruction-of-justice enhancement, that because she believed her actions to have been permitted, she did not abuse a position of trust. This argument fails here for the same reason it fails with respect to the obstruction-of-justice enhancement:
Finally, Stewart argues that her sentence is substantively unreasonable, principally because of the more than fourfold increase from her original sentence of 28 months' incarceration to the currently imposed sentence of 120 months. She asserts that aside from her public statements, "no change in circumstances or information available to the sentencing court ... supported increasing Ms. Stewart's sentence by this magnitude." Def.'s Br. at 101. She also contends that the district court was not permitted to increase the sentence in response to suggestions that it do so in the dissent from our panel opinion, and in the dissents accompanying the denial of rehearing en banc. Def.'s Br. at 103. And she urges that in light of her personal characteristics, the sentence imposed on her was so "shockingly high" as to render it substantively unreasonable.
The substantive unreasonableness standard "provide[s] a backstop for those few cases that, although procedurally correct, would nonetheless damage the administration of justice because the sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter of law." United States v. Rigas, 583 F.3d 108, 123 (2d Cir.2009). We will only set aside a district court's sentence on substantive grounds "in exceptional cases where the trial court's decision cannot be located within the range of permissible decisions." United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (en banc) (internal quotation marks omitted).
Stewart contends that the district court's decision to impose a fourfold increase in her sentence was unsupportable because the second sentence was imposed based on the same set of facts that led to Stewart's vacated 28-month sentence. Indeed, "if a district court were explicitly to conclude that two sentences equally served the statutory purpose of § 3553, it could not ... impose the higher" sentence. United States v. Ministro-Tapia, 470 F.3d 137, 142 (2d Cir.2006).
Here, however, we previously faulted the district court for its "failure to find particular facts." Stewart I, 590 F.3d at 150-51. We directed the court to make specific findings with regard to whether Stewart had obstructed justice. Id. We also asked that the court explicitly consider application of the abuse-of-trust enhancement, and "reconsider the extent to which Stewart's status as a lawyer affects the appropriate sentence." Id. We noted that the terrorism enhancement "plainly applies" and that "[w]hether or not the district court gave appropriate consideration in its section 3553(a) analysis to whether support of terrorism is an aggravating
On remand, the district court punctiliously followed our instructions, and in doing so it arrived at the 120-month sentence it imposed on Stewart. That it did not calculate the same sentence the first time can be attributed largely to the errors we had identified. Stewart's contention that there was nothing of significance that had changed between the first and second sentencing sufficient to support the greater sentence ignores this entire sequence of events — most particularly the intervening decision of this Court.
The district court acted within its discretion in imposing the 120-month sentence after engaging in a careful consideration of the factors upon which we focused in our prior opinion, and the increase is therefore not "unsupportable as a matter of law." Rigas, 583 F.3d at 123.
Stewart asserts that the district court's sentence is also unsupportable because it was based on instruction from non-controlling opinions in the preceding appeal, particularly the panel dissent
But counsel conceded at oral argument that no authority supports this argument. And Stewart does not point to anything written by any judge of this Court who was not on the panel that had a demonstrable effect on the district court at resentencing, let alone anything that would warrant vacatur of the sentence. We read the transcript of the sentencing proceeding, as explained previously, to exhibit a close adherence to the instructions of the panel majority, and a sentence imposed in accordance with those instructions. That is exactly what was required of the district court on remand.
Stewart argues, finally, that the sentence imposed was shockingly high.
As the district court also recognized in its initial sentencing, however, "[t]here is [at issue] an irreducible core of extraordinarily severe criminal conduct." Id. at 63 (internal quotation marks and citation to transcript of original sentencing hearing omitted). In Stewart I, we too specifically noted "the seriousness of Stewart's crimes and the seemingly modest sentence she received for it." Stewart I, 590 F.3d at 149. The 120-month resulting sentence fell a full twenty years below the minimum Guidelines sentence and statutory maximum. Considering all the appropriate factors, the district court determined that a 120-month sentence would be "sufficient, but no greater than necessary" to fulfill the sentencing objectives required under section 3553(a).
It is the "rare case" in which we will find a sentence substantively unreasonable, and we place "great trust" in a sentencing court. Rigas, 583 F.3d at 123. In Stewart I, we expressly recognized and were "impressed by the factors that figured in Stewart's modest sentence — particularly her admirable history of providing, at no little personal cost to herself, proficient legal services in difficult cases to those who could not otherwise afford them." Stewart I, 590 F.3d at 147-48. But, nonetheless, she engaged in severe criminal conduct in aid of a terrorism conspiracy, and she did so by abusing the trust that the government had placed in her as a member of the bar. When confronted with these transgressions, she lied repeatedly under oath.
From the moment she committed the first act for which she was convicted, through her trial, sentencing, and appeals, Stewart has persisted in exhibiting what seems to be a stark inability to understand the seriousness of her crimes, the breadth and depth of the danger in which they placed the lives and safety of unknown innocents, and the extent to which they constituted an abuse of her trust and privilege as a member of the bar. We cannot agree with her that the sentence imposed on her was "shockingly high" so as to warrant a finding of substantive unreasonableness.
For the foregoing reasons, the judgment of the district court is affirmed.
Stewart I, 590 F.3d at 102-03 (alterations in original; citations omitted).
We need not decide whether strict, intermediate, or some other level of scrutiny would apply if Stewart were challenging a government regulation here. "Deciding whether a particular regulation is content based or content neutral is not always a simple task.... As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based." Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 642-643, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994).
This is not to say that no such argument is possible. It has been asserted in the academy that there are First Amendment objections to factoring a defendant's remorse into a sentence at all, under section 3553 or otherwise, even when it is based on in-court statements or failure to make an appropriate such statement. See Carissa Byrne Hessick & F. Andrew Hessick, Recognizing Constitutional Rights at Sentencing, 99 Cal. L. Rev. 47, 66-71 (2011). But that is not the law of this Circuit — evidence of lack of remorse is regularly used in imposing sentence. See Watkins, 667 F.3d at 260; United States v. Martinucci, 561 F.3d 533, 535 (2d Cir.2009) (per curiam); see also United States v. Barresi, 316 F.3d 69, 75 (2d Cir.2002) (assuming that "lack of remorse" can properly be used as a basis for an upward departure from a Guidelines sentence, but concluding that there was an "absence of any grounds in the record that could persuasively warrant [such a] finding."). As noted, she has in any event not made this argument.
Neither are we aware of any defendant who has attacked section 3553, successfully or otherwise, on the basis that its chilling effects on speech require First Amendment scrutiny. This is not surprising. "Nearly all the ways that defendants speak in court are heavily regulated and potentially punishable without raising First Amendment claims." Alexandra Natapoff, Speechless: The Silencing of Criminal Defendants, 80 N.Y.U. L. Rev. 1449, 1484 (2005). While Stewart is, of course, challenging the use of her out-of-court statements at sentencing, the court took them into account in the same manner as it would have been entitled to had she expressed the same lack of remorse in testimony or otherwise in court.
The district court's view was that "[t]hese statements indicate that the original sentence was not sufficient to accomplish the purposes of section 3553(a)(2), including to reflect the seriousness of the offense and to provide adequate deterrence." Stewart II, at 62. The court was apparently referring to general deterrence, in light of its remarks regarding the very limited potential for recidivism on Stewart's part. We think that these reasons were sufficient and proper. See Fernandez, 443 F.3d at 33 ("Section 3553(a)(1) ... is worded broadly, and it contains no express limitations as to what `history and characteristics of the defendant' are relevant.").
To be sure, there is room for debate on the function that consideration of remorse serves when recidivism or rehabilitation are not at issue, or if it is effective in addressing those goals. Compare Bryan H. Ward, Sentencing without Remorse, 38 Loy. U. Chi. L.J. 131, 140 (2006) ("[C]ourts rely on remorse simply because, historically, courts always have."), with Stephanos Bibas & Richard A. Bierschbach, Integrating Remorse and Apology into Criminal Procedure, 114 Yale L.J. 85, 125 (2004) ("The values served by remorse and apology should be more integral parts of the process of prosecution and punishment. For the criminal law to regulate society effectively and morally educate, it must serve the values of remorse and apology in addition to deterring crimes, inflicting retribution, and protecting defendants' rights."). Inasmuch as the issue has not been raised on this appeal, we have no cause to engage in that debate.
