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Brief Cover.Qxd 06-5015-CR(L) 06-5031-CR(CON), 06-5093-CR(CON), 06-5131-CR(XAP), 06-5135-CR(XAP) and 06-5143-CR(XAP) IN THE United States Court of Appeals FOR THE SECOND CIRCUIT !! !! UNITED STATES OF AMERICA, Appellee-Cross-Appellant, v. LYNNE STEWART, MOHAMMED YOUSRY, AHMED ABDEL SATTAR, Defendants-Appellants-Cross-Appellees. On Appeal from the United States District Court for the Southern District of New York BRIEF AND SPECIAL APPENDIX FOR DEFENDANT-APPELLANT-CROSS-APPELLEE LYNNE STEWART LAW OFFICES OF JOSHUA L. DRATEL, P.C. Attorneys for Defendant-Appellant- Cross-Appellee Lynne Stewart 2 Wall Street, 3rd Floor Of Counsel: New York, New York 10005 Joshua L. Dratel 212-732-0707 Meredith S. Heller Erik B. Levin David B. Rankin TABLE OF CONTENTS Table of Contents .................................................. i Table of Authorities ................................................xii STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION ...................................1 STATEMENT OF THE ISSUES ......................................1 PRELIMINARY STATEMENT AND INTRODUCTION ..................3 STATEMENT OF THE FACTS .......................................8 A. The Initial Indictment .........................................10 B. The District Court’s Partial Dismissal of the Initial Indictment ........12 C. The Superseding Indictment ....................................13 D. The Trial ...................................................15 1. The S.A.M.’s ...........................................15 2. The March 1999 Visit to Sheikh Abdel Rahman ...............17 3. The May 2000 Visit to Sheikh Rahman .......................18 4. The June 2000 Press Conference ...........................21 5. The July 2001 Visit to Sheikh Abdel Rahman .................23 6. The Verdict ............................................24 7. Post-Trial Proceedings ...................................24 i ARGUMENT POINT I MS. STEWART’S CONVICTIONS SHOULD BE VACATED, AND A NEW TRIAL ORDERED, BECAUSE THE ACCUMULATION OF UNFAIR PREJUDICE FROM EVIDENCE INTRODUCED AT TRIAL DENIED HER A FAIR TRIAL, AND SHOULD HAVE RESULTED IN A SEVERANCE OF HER TRIAL .................25 A. The Law Relevant to Severance Generally .........................27 B. The Unfairly Prejudicial Evidence That Inundated the Trial ..........28 1. The Two Videotapes Featuring Usama Bin Laden .............29 2. The Numerous Newspaper Articles and Media Broadcasts Admitted at Trial Regarding Deadly and Violent Terrorist Acts ................................30 3. The “Fake Fatwah” Erroneously Attributed to Sheikh Rahman .........................................33 4. Tape Recordings Not Admitted Against Ms. Stewart ............33 5. Sheikh Rahman’s Undated Will and Other Documents ..........34 C. The District Court’s Decisions Below Denying Ms. Stewart A Severance .......................................36 D. Ms. Stewart Should Have Been Granted Severance Due to the Volume and Magnitude of Unduly Prejudicial Evidence ...........38 E. The District Court’s Attempted Curative Instructions Were Unavailing .............................................44 ii 1. The District Court’s Pre- and Post-Trial Opinions .............44 POINT II MS. STEWART’S CONVICTIONS ON COUNTS FOUR AND FIVE SHOULD BE VACATED, AND THE CHARGES DISMISSED, BECAUSE THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH THAT SHE PROVIDED “PERSONNEL” UNDER §2339A ...............54 A. The Applicable Principles and Standards for Reviewing Whether the Evidence at Trial Was Sufficient Beyond a Reasonable Doubt ..........................................55 B. The “Material Support” Alleged At Trial In the Form of “Personnel” Constituted No More Than Sheikh Rahman’s and Ms. Stewart’s Constitutionally Protected Speech, and Therefore Cannot Constitute “Material Support” Under §2339A ......59 1. The “Personnel” Allegedly Provided By Ms. Stewart Was Limited to Sheikh Abdel Rahman’s Constitutionally Protected Statements ....................................61 a. The Allegations of “Personnel” In the Successive Indictments .......................................61 b. The Evidence of “Personnel” Presented At Trial .........63 c. Any Alleged “Concealment” Was Directly Related to Protected Speech ..................74 2. Congress, the Courts, and the DoJ All Agree That Protected First Amendment Activity Does Not Constitute “Material Support” .............................77 a. The “Material Support” Statutory Language ............77 b. The Congressional Intent Is Explicit ...................79 iii c. The Courts’ Interpretation Has Been Uniform and Unambiguous ......................81 d. The Department of Justice’s Position In Other Cases Is Consistent With That of Congress and the Courts .......87 3. Analysis of First Amendment Doctrine Demonstrates That the “Personnel” Ms. Stewart Allegedly Provided In This Case Consisted Only of Sheikh Rahman’s Statements Constituting Protected First Amendment Activity ..........89 4. Rules of Statutory Construction Demonstrate That Sheikh Rahman’s Statements Do Not Constitute “Personnel” or “Material Support” ..........................................113 a. Constitutional Avoidance Requires That §2339A Be Construed Not to Include Sheikh Rahman’s Statements as “Personnel” or “Material Support” ......113 b. Other Canons of Statutory Construction Similarly Compel Reversal Here .....................114 c. The Rule of Lenity Requires a Narrow Reading of §2339A .......................................115 POINT III MS. STEWART’S CONVICTION ON COUNTS FOUR AND FIVE SHOULD BE REVERSED, AND THOSE COUNTS DISMISSED, BECAUSE THE EVIDENCE WAS NOT SUFFICIENT TO ESTABLISH HER KNOWLEDGE OR SPECIFIC INTENT BEYOND A REASONABLE DOUBT .......................117 A. The District Court’s Construction of the Government’s Burden Under §2339A ...........................118 iv B. The General Principles Governing Knowledge and Specific Intent ...........................................119 C. The Government Failed to Establish Ms. Stewart’s Knowledge or Specific Intent With Respect to the §2339A Charges and Their Relationship to Count Two’s §956(a) Conspiracy to Kill .......122 1. The Evidence Regarding the Nexus to Count Two’s §956(a) Conspiracy to Murder Was Absent .......123 2. Mere Association, Even With Knowledge, Is Insufficient to Establish Membership In a Conspiracy ....135 POINT IV MS. STEWART’S CONVICTIONS ON COUNTS FOUR & FIVE MUST BE REVERSED BECAUSE §2339A IS UNCONSTITUTIONALLY VAGUE AS APPLIED AND OVERBROAD IN THIS CASE .....................................144 A. The Fundamentals of the Void-for-Vagueness Doctrine ...................................................146 B. The District Court’s Construction of §2339A’s Intent Requirement ..........................................149 1. The District Court’s Opinion Dismissing the Initial Indictment .......................................149 2. The District Court’s Opinion Upholding the Superseding Indictment .................................150 C. The District Court Failed At Trial to Apply Any “Heightened Specific Intent” Requirement to §2339A ..............152 1. The District Court Failed to Charge the Jury to Find “Specific Intent” ................................153 v a. The Meaning of “Specific Intent” ....................153 b. §2339A Is A Specific Intent Crime ....................154 c. The Jury Instructions on §2339A’s Mens Rea Requirement .............................156 2. The District Court Impermissibly Diluted the Proof Required for the §956(a) Conspiracy to Kill Charged In Count Two ......158 a. By Failing to Require Sufficiently Specific Proof of the §956(a) Conspiracy to Kill, the District Court Fatally Undermined Any Restrictions a Proper Intent Requirement Could Impose on the Scope of §2339A ......159 b. §2339A Operates Impermissibly As a Multi-Level Inchoate Offense ..................................161 i. The Logical Absurdity of Multi-Level Inchoate Offenses ............................163 ii. Multi-Level Inchoate Offenses Violate Due Process ................................165 3. The District Court Impermissibly Allowed Protected Speech to Serve As the “Personnel” Provided to Count Two’s §956(a) Conspiracy to Kill ....................169 a. The “Personnel” Alleged In the Superseding Indictment Is Merely An Unavailing Variant on the Initial Indictment’s Invalid Theory of “Material Support” ...............................169 b. “Personnel” Remains Unconstitutional As Applied to Ms. Stewart In This Case ................170 c. The Application of §2339A to Ms. Stewart Herein vi Constitutes An Example of Arbitrary and Discriminatory Enforcement ........................174 POINT V MS. STEWART’S CONVICTION ON COUNT ONE SHOULD BE REVERSED, AND THE CHARGE DISMISSED, BECAUSE (A) THE GOVERNMENT FAILED TO PROVE A CONSPIRACY TO DEFRAUD THE U.S.; (B) THE PROSECUTORS LACKED AUTHORITY TO HOLD MS. STEWART CRIMINALLY LIABLE FOR VIOLATION OF THE S.A.M.’S; AND (C) THE DISTRICT COURT ERRED IN DENYING MS. STEWART THE OPPORTUNITY TO CHALLENGE THE VALIDITY OF THE S.A.M.’S ..................175 A. The Government Proved At Most a Scheme to Defy the Government, Not Defraud It ............................176 B. The Government Failed to Prove Ms. Stewart Had Any Intention Beyond Pursuing a Legal Strategy to Obtain a Prisoner Transfer for Sheikh Rahman ..........................................180 C. The Attorney General Lacked Authority to Punish Lawyers Criminally for Violations of the S.A.M.’s .........................182 D. The District Court Should Have Permitted Ms. Stewart to Challenge the Validity of the
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