United States v. Stewart, No. 10-3185 (2d Cir. June 28, 2012) (Winter, Calabresi, Sack, CJJ)
This opinion appears to shut the door on the long-running series of appeals in the Lynne Stewart case. Stewart was convicted after trial of conspiracy to defraud the United States, providing material support to the killing or kidnapping of persons in a foreign country and making false statements. Underlying these convictions were her efforts to smuggle messages to and from her client, Sheikh Omar Ahman Ali Abdel Rahman, who was then serving a terrorism-related life sentence.
Stewart was originally sentenced to 28 months’ imprisonment. The government appealed, and the circuit vacated the sentence with instructions to the district court to: determine whether Stewart had committed perjury in her trial testimony; consider applying the abuse-of-trust enhancement; clarify whether it had applied the terrorism enhancement (having found that it “plainly” applied in Stewart’s case) and; and “further consider the overall question” of the severity of her sentence, given “the magnitude of the offense.” See “SAMs Club,” posted November 29, 2009.
At resentencing, the district court applied the terrorism enhancement, an obstruction-of-justice enhancement on a finding that Stewart committed perjury, and abuse-of-trust. In addition, in determining her sentence, the court considered some of Stewart’s public post-sentencing comments and concluded both that she lacked remorse and that she regarded the original sentence as trivial. Finding that the Guideline range was 360 to life, the district court resentenced Stewart to 120 months’ imprisonment.
On Stewart’s appeal, the circuit affirmed the sentence. Stewart’s primary claim was grounded in the First Amendment. She argued that the district court erred in basing her punishment on statements she made to the public and the press.
Here, the district court explicitly considered two such statements. The first was one Stewart made outside the courthouse in 2006, immediately after she was sentenced to 28 months, in which she said, in part, “I don’t think anybody would say that going to jail for two years is something you look forward to, but as my clients have said to me, ‘I can do that standing on my head.’” About three years later, during a television interview, when asked whether she would have done anything differently, she replied, again in part, that she would have been “a little more savvy that the government would come after me,” that she did not have any criminal intent, and that she “would do it again. I might handle it a little differently, but I would do it again.”
The circuit gave serious consideration to the tension between the requirement that a sentencing court consider a defendant’s history and characteristics, which can often be only or principally assessed by things she has said, and the First Amendment’s guarantee that free speech not be encroached by the government. But the court found that Stewart’s First Amendment rights were not violated.
The court’s legal analysis focused on the degree to which speech relied upon by a sentencing court is related to a legitimate sentencing issue. Thus, it is “impermissible to sentence a defendant more harshly” based on associations or public statements that “do not relate to specific criminal wrongdoing.” But, while a defendant cannot be punished for her political beliefs or speech, such evidence might be relevant to proving specific sentencing factors, such as “motive or aggravating circumstances, to illustrate future dangerousness, or to rebut mitigating evidence.” That is all that the district court did here – it used Stewart’s statements to make a legitimate judgment about her lack of remorse.
And, while Stewart argued that she was prosecuted and punished for her political beliefs, the circuit found “not a hint in the record of any fact to support” this. The circuit also disagreed that Stewart received a longer sentence on remand principally because of her statements. To the circuit, the primary bases for the longer sentence were the terrorism and other enhancements that the district court explicitly found to apply at the resentencing.
The circuit also rejected Stewart’s claim that the increased sentence in her case might have a “chilling effect” on others who might otherwise wish to speak out in the way that she did.
The circuit first took pains to define the concept of a “chilling effect,” concluding that “a chilling effect occurs when individuals seeking to engage in activity protected by the [F]irst [A]mendment are deterred from doing so by governmental regulation not specifically directed at that protected activity.” But, to the circuit, Stewart’s case did not in any way turn on the permissibility of a government regulation under which Stewart’s speech had been punished. And it is simply untrue that any action by an agent of government that has a “collateral deterrent effect on protected speech” violates the First Amendment. Indeed, there is “no authority” for the proposition that the government cannot use the contents of voluntary public speech to the speaker’s disadvantage, even if there is a risk that someone will subsequently think twice about making a similar public statement.