United States v. Mohammad El-Mezain

REVISED January 13, 2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
December 7, 2011
No. 09-10560
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
MOHAMMAD EL-MEZAIN; GHASSAN ELASHI; SHUKRI ABU BAKER;
MUFID ABDULQADER; ABDULRAHMAN ODEH; HOLY LAND
FOUNDATION FOR RELIEF AND DEVELOPMENT, also known as HLF,
Defendants - Appellants
_________________
Consolidated with
08-10664
_________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
SHUKRI ABU BAKER; MOHAMMAD EL-MEZAIN; GHASSAN ELASHI;
MUFID ABDULQADER; ABULRAHMAN ODEH,
Defendants - Appellants
No. 09-10560
_________________
Consolidated with
08-10774
_________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
MOHAMMAD EL-MEZAIN,
Defendant - Appellant
_________________
Consolidated with
10-10590
_________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee - Cross-
Appellant
v.
HOLY LAND FOUNDATION FOR RELIEF AND DEVELOPMENT, also
known as HLF,
Defendant - Appellant -
Cross-Appellee
_________________
Consolidated with
10-10586
_________________
UNITED STATES OF AMERICA,
Plaintiff
2
No. 09-10560
v.
SHUKRI ABU BAKER,
Defendant
NANCY HOLLANDER,
Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before KING, GARZA, and GRAVES, Circuit Judges.
KING, Circuit Judge:
In this consolidated case, we address the appeals of five individuals and
one corporate defendant convicted of conspiracy and substantive offenses for
providing material aid and support to a designated terrorist organization. The
terrorist organization at issue is Hamas, which in 1995 was named a Specially
Designated Terrorist by Presidential Executive Order pursuant to authority
granted by the International Emergency Economic Powers Act, 50 U.S.C. § 1701et seq. Hamas was further designated as a Foreign Terrorist Organization in
1997, as contemplated by 18 U.S.C. § 2339B.
Although this case is related to terrorism, it does not involve charges of
specific terrorist acts. Instead, it focuses on the defendants’ financial support for
terrorism and a terrorist ideology. The defendants were charged with aiding
Hamas by raising funds through the corporate entity Holy Land Foundation for
Relief and Development, a Texas-based, pro-Palestinian charity that the
Government charged was created for the sole purpose of acting as a financing
arm for Hamas. Although the charged conspiracy began in 1995 when Hamas
3
No. 09-10560
was first designated as a terrorist organization, the defendants’ connection to
Hamas arose much earlier.
Established in the late 1980s, the Holy Land Foundation held itself out as
the largest Muslim charitable organization in the United States. It raised
millions of dollars over the course of its existence that were then funneled to
Hamas through various charitable entities in the West Bank and Gaza.
Although these entities performed some legitimate charitable functions, they
were actually Hamas social institutions. By supporting such entities, the
defendants facilitated Hamas’s activity by furthering its popularity among
Palestinians and by providing a funding resource. This, in turn, allowed Hamas
to concentrate its efforts on violent activity.
The trial, which followed an earlier mistrial and lasted approximately six
weeks, produced a massive record on appeal. The Government produced
voluminous evidence obtained from covert surveillance, searches, and testimony
showing a web of complex relationships connecting the defendants to Hamas and
its various sub-groups. The financial link between the Holy Land Foundation
and Hamas was established at the Foundation’s genesis and continued until it
was severed by the Government’s intervention in 2001.
The defendants raise a host of issues challenging both their convictions
and their sentences, including numerous errors that they claim deprived them
of a fair trial. While no trial is perfect, this one included, we conclude from our
review of the record, briefs, and oral argument, that the defendants were fairly
convicted. For the reasons explained below, therefore, we AFFIRM the district
court’s judgments of conviction of the individual defendants. We DISMISS the
appeal of the Holy Land Foundation for Relief and Development.
4
No. 09-10560
TABLE OF CONTENTS
I. Factual and Procedural Background.................................................................7
II. Discussion...........................................................................................................16
A. Testimony of witnesses using pseudonyms.............................................16
B. Hearsay evidence......................................................................................22
1. Mohamed Shorbagi.........................................................................23
2. Documents seized from the Palestinian Authority.......................27
3. Elbarasse and Ashqar documents..................................................34
C. Prejudicial evidence under Rule 403.......................................................46
D. Expert and lay opinion testimony...........................................................52
1. John McBrien..................................................................................52
2. FBI Agents Lara Burns and Robert Miranda...............................56
3. Matthew Levitt................................................................................59
4. Steven Simon...................................................................................60
E. Letter rogatory..........................................................................................62
F. Production of the defendants’ intercepted statements...........................65
G. Harmless and cumulative error..............................................................77
1. Harmless error................................................................................78
a. HLF’s connection to Hamas..................................................80
b. Hamas’s control of the zakat committees............................88
2. Cumulative error.............................................................................94
H. Jury charge...............................................................................................94
I. The search of HLF’s offices.....................................................................101
J. Defendant Elashi’s double jeopardy issue.............................................111
1. Time...............................................................................................113
2. Co-conspirators.............................................................................114
3. Statutory offenses.........................................................................115
4. Overt acts......................................................................................117
5
No. 09-10560
5. Place...............................................................................................120
K. Defendant El-Mezain’s collateral estoppel issue..................................121
1. Collateral estoppel as a bar to the instant conviction.................122
2. Collateral estoppel and the exclusion of evidence.......................132
L. Mistrial and double jeopardy.................................................................134
M. Challenge to FISA applications and intercepts...................................142
1. Disclosure of FISA applications and orders................................143
2. Suppression of FISA intercepts....................................................151
N. Sentencing..............................................................................................154
1. Terrorism adjustment...................................................................154
2. Value of laundered funds..............................................................156
O. Appeals of HLF and Nancy Hollander..................................................158
1. Background...................................................................................158
2. HLF’s appeal.................................................................................165
3. Hollander’s appeal........................................................................169
III. Conclusion.......................................................................................................170
6
No. 09-10560
I. FACTUAL & PROCEDURAL BACKGROUND
The instant prosecution began with an indictment of the defendants in
2004 that ended in a mistrial in 2007 but with a partial verdict. The defendants
were re-tried and convicted in 2008. The indictment, as superseded, charged the
defendants with conspiracy to provide material support to a foreign terrorist
organization (i.e., Hamas), in violation of 18 U.S.C. § 2339B(a)(1) (Count 1);
providing material support to a foreign terrorist organization, in violation of 18
U.S.C. § 2339B(a)(1) (Counts 2–10); conspiracy to provide funds, goods, and
services to a Specially Designated Terrorist (i.e., Hamas), in violation of 50
U.S.C. §§ 1701–1706 (Count 11); providing funds, goods, and services to a
Specially Designated Terrorist, in violation of 50 U.S.C. §§ 1701–1706 (Counts
12–21); conspiracy to commit money laundering, in violation of 18 U.S.C.
§ 1956(h) (Count 22); substantive money laundering, in violation of 18 U.S.C.
§ 1956(a)(2)(A) (Counts 23–32); forfeiture of assets; and certain tax offenses not
relevant to this appeal.
The charges arose after many years of widespread surveillance conducted
pursuant to the Foreign Intelligence Surveillance Act (“FISA”) of several
individuals and of the Holy Land Foundation for Relief and Development
(“HLF”). Until it was closed by the Government in 2001, HLF was a pro-
Palestinian charitable organization based in Richardson, Texas. Individual
defendants Shukri Abu Baker, Ghassan Elashi, and Mohammad El-Mezain
served as officers and directors for HLF. Defendant Abdulrahman Odeh
managed HLF’s New Jersey office, and Defendant Mufid Abdulqader was a
speaker and performer who appeared at HLF fundraising events.
HLF held itself out to be the largest Muslim charity in the United States,
ostensibly with the mission of providing humanitarian assistance to needy
Palestinians living in the Israeli-occupied territory of the West Bank and Gaza.
The Government charged that in reality HLF’s mission was to act as a
7
No. 09-10560
fundraising arm for Hamas, also known as the Islamic Resistance Movement,
and to assist Hamas’s social wing in support of Hamas’s goal to secure a
Palestinian Islamic state in what is now Israel. The indictment charged the
defendants with assisting Hamas by funneling money to certain “zakat”
committees located in the West Bank. Zakat committees are charitable
organizations to which practicing Muslims may donate a portion of their income
pursuant to their religious beliefs, but the Government charged that the
committees to which the defendants gave money were part of Hamas’s social
network.
According to the evidence at trial, which we view in the light most
favorable to the verdict, Hamas operates political, military, and social branches
to serve its overall goal to destroy Israel. Its charter advocates violent jihad as
the only solution for the conflict between Palestinians and Israelis, and it
considers it the duty of all Muslims to participate in this objective either through
direct action or through financial support. Hamas’s social wing serves this
purpose in multiple ways. It provides social services like education and medical
care to the needy through the operation of schools and hospitals. But it also
builds grassroots support for Hamas and its violent activities through these
same means. The social wing is crucial to Hamas’s success because, through its
operation of schools, hospitals, and sporting facilities, it helps Hamas win the
“hearts and minds” of Palestinians while promoting its anti-Israel agenda and
indoctrinating the populace in its ideology. The social wing also supports the
families of Hamas prisoners and suicide bombers, thereby providing incentives
for bombing, and it launders money for all of Hamas’s activities. Therefore, aid
to Hamas’s social wing critically assists Hamas’s goals while also freeing
resources for Hamas to devote to its military and political activities.
The evidence showed that HLF and Hamas were created along similar
time lines. In 1987, a Palestinian revolt in Israel, known as the Intifada,
8
No. 09-10560
spurred the founding of Hamas by Sheikh Ahmed Yassin as a representative
organization for Palestine. Hamas considered itself to be the Palestinian branch
of the Muslim Brotherhood, a much older Islamic organization created in the
1920s and to which Yassin belonged. After Hamas’s formation, the Muslim
Brotherhood directed its world-wide chapters to establish so-called “Palestine
Committees” to support Hamas from abroad.
In the United States, Defendants Baker, El-Mezain, and Elashi were
members of a Palestine Committee headed by unindicted co-conspirator Mousa
Abu Marzook. The Government established that Marzook was the leader of
Hamas’s political wing in the 1990s. According to the prosecution’s case, the
Palestine Committee also created other organizations in the United States to
support Hamas. The Committee created not only HLF but also the Islamic
Association for Palestine (“IAP”), which was a media entity, and the United
Association for Studies and Research (“UASR”), which published papers and
books about Hamas. Defendant Baker was also an IAP board member.
In 1988, Baker founded the Occupied Land Fund as a Muslim charity in
Indiana. He, Elashi, and El-Mezain later incorporated the organization in
California before renaming it as HLF in 1991. In 1992, HLF moved to Texas,
where it was located across the street from Elashi’s computer company, Infocom
Corporation. HLF stored many of its records and documents at Infocom, which
were later seized by the FBI.
The defendants raised money through HLF by conducting nationwide
fundraising events, conferences, and seminars where HLF sponsored speakers
and solicited donations. Some of the events featured songs, performances, and
skits glorifying Hamas. Defendant Abdulqader was part of a band that
performed at many of these events. He also traveled around the country on
HLF’s behalf to speak and raise funds. HLF also conducted teleconferences
where participants could listen to featured speakers and donate money. Prior
9
No. 09-10560
to 1995, the individual defendants and HLF more or less openly supported
Hamas. Then, after Hamas was designated as a terrorist organization, the
defendants’ support became less obvious. Speakers and performers at HLF
fundraising events no longer openly referred to Hamas even though HLF
continued to support the same zakat committees that Hamas controlled.
From 1992 to 2001, HLF raised approximately $56 million in donations.
The Government charged that from 1995 to 2001, HLF sent approximately $12.4
million outside of the United States with the intent to willfully contribute funds,
goods, and services to Hamas.1
During the period from the late 1980s to the early 1990s when HLF was
raising funds for the Palestinian cause, and prior to Hamas’s designation as a
terrorist organization, there were ongoing peace talks between Israel and the
Palestinians, of which the defendants took notice. In September 1993, Yasser
Arafat, the leader of the Palestine Liberation Organization (“PLO”), and Israeli
Prime Minister Yitzhak Rabin signed what became known as the Oslo Accords.
These accords established mutual recognition between the Israeli government
and the Palestinians. They also created a limited governing body for
Palestinians, known as the Palestinian Authority (“PA”). As a political rival of
Arafat and his Fatah political party, Hamas opposed the Oslo Accords.
One month after the Oslo Accords were signed, Defendants Baker and
Elashi, and possibly Abdulqader, participated in a meeting at a Philadelphia
hotel (“the Philadelphia meeting”) that was secretly recorded by the FBI.2 The
1
The evidence showed that HLF provided the following amounts to zakat committees
controlled by Hamas: $366,585 to the Tulkarem Zakat Committee; $1,674,954 to the Islamic
Charitable Society of Hebron (“ICS Hebron”); $475,715 to the Nablus Zakat Committee;
$554,500 to the Jenin Zakat Committee; $494,252 to the Ramallah Zakat Committee; and
$295,187 to the Qalqilia Zakat Committee. In addition, HLF sent $485,468 to the Islamic
Science and Culture Committee from May 1991 until the committee was closed in 1996.
2
Hotel records from the meeting’s location contained Abdulqader’s signature,
suggesting that he was present, but the record was also marked as having been voided.
10
No. 09-10560
meeting participants, which included many of the members of the Palestine
Committee, discussed their opposition to the Oslo Accords, their desire to derail
the peace process, and their continued support of Hamas. Statements from
Baker suggested an aura of deception and an intent to hide a connection to
Hamas. At one point, Baker instructed that if anyone should inquire about the
purpose of the meeting, participants should explain that it was a “joint
workshop” between HLF and the IAP. He also indicated that the participants
should not mention “samah” in an explicit manner and should refer at the
session only to “Sister Samah,” which is Hamas spelled backwards.
Beginning in approximately 1994, Government surveillance on the
defendants included wiretaps on the telephones and facsimile machines of HLF,
Baker, El-Mezain, and Abdulqader. In addition to the wiretaps, the Government
conducted searches at the homes of two unindicted co-conspirators, Ismail
Elbarasse and Abdelhaleen Masan Ashqar, who had also participated in the
Philadelphia meeting. The searches yielded numerous documents corroborating
the creation of the Palestine Committee and its oversight of HLF as a
fundraising arm for Hamas. The documents included organizational flow charts,
bylaws, and meeting minutes. The amended bylaws identified HLF under its
previous name, the Occupied Land Fund, as the “official organization which
represents the financial and charitable aspect to support the homeland people
in the occupied territories.” The bylaws further showed that the Muslim
Brotherhood had directed the collection “of donations for the Islamic Resistance
Movement.”
In January 1995 the President issued Executive Order 12947, designating
Hamas as a Specially Designated Terrorist (“SDT”). The designation prohibited
financial transactions with or for the benefit of Hamas and authorized the
Treasury Department to block assets within the jurisdiction of the United States
in which Hamas had an interest. The Executive Order determined, in part, that
11
No. 09-10560
“grave acts of violence committed by foreign terrorists that disrupt the Middle
East peace process constitute an unusual and extraordinary threat to the
national security, foreign policy, and economy of the United States.” Hamas was
further designated as a foreign terrorist organization (“FTO”) by the State
Department in 1997 pursuant to Section 219 of the Immigration and Nationality
Act, as added by the Antiterrorism and Effective Death Penalty Act of 1996.
On December 3, 2001, pursuant to the International Emergency Economic
Powers Act, 50 U.S.C. § 1701 et seq. (“IEEPA”), the United States designated
HLF as a SDT. The next day, the Treasury Department’s Office of Foreign
Assets Control (“OFAC”) issued a blocking order on HLF’s assets. On that same
day, OFAC entered HLF’s offices in Texas, New Jersey, Illinois, and California,
and seized physical property. The seizure was conducted pursuant to the
authority of IEEPA; no judicial warrant was obtained. In April 2002 the FBI
sought, and was granted, a warrant from a magistrate judge to search the
property that OFAC had seized. Evidence obtained from that search was used
at trial. A search was also conducted at Infocom, where the FBI seized more of
HLF’s documents and records.
At trial, the Government’s evidence was voluminous and came from a
variety of sources, including the above seizures, wiretaps, and financial
documents. It also included evidence seized by the Israeli military from the
zakat committees and from the PA’s headquarters in Ramallah. The key issues
addressed by the evidence were the connection between the defendants and
Hamas, and Hamas’s control of the zakat committees. The evidence also covered
two general time periods: the time before Hamas was designated as a terrorist
organization and the time following the designation.
Evidence demonstrating the defendants’ support of Hamas before the
designation included numerous video recordings showing several individual
defendants appearing at HLF fundraising events attended by Hamas leaders,
12
No. 09-10560
such as Marzook and Khalid Mishal, who is the current leader of Hamas’s
political wing. The speakers and performers praised Hamas at many of these
events, where donations were encouraged and solicited by HLF. Some of the
videos were seized from HLF offices, while others were found buried in the
backyard of a residence formerly occupied by Fawaz Mushtaha, who was
associated with the Palestine Committee and also played in the same band with
Defendant Abdulqader.
The Government also presented evidence of numerous financial
transactions between HLF and Hamas leader Marzook and Marzook’s wife
Nadia.3 Marzook further had personal connections to the defendants as shown
through numerous telephone calls to El-Mezain and Baker, and the listing of
contact information for El-Mezain, Baker, and Elashi in his personal telephone
book.
Mohamed Shorbagi, a former HLF representative who pleaded guilty in
a separate case, testified that HLF’s purpose was to support Hamas. He
testified about attending closed meetings with the individual defendants and
Hamas leaders. He described one meeting in 1994 where Marzook introduced
Mishal, who spoke about the emergence of Hamas and the participants’ roles in
supporting the Hamas movement. According to Shorbagi, El-Mezain led a sub-
group from that meeting in discussions on fundraising.
Shorbagi’s testimony that HLF supported Hamas was consistent with
testimony from an Israeli Security Agency employee who provided expert
testimony about Hamas financing. Using the pseudonym “Avi” for security
reasons, the witness testified that most of the zakat committees that received
funds from HLF had come under the control of Hamas by 1991. This testimony
was also consistent with conversations captured from the Philadelphia meeting
3
Nadia is also the cousin of Defendant Elashi. Marzook was himself named a Specially
Designated Terrorist in 1995.
13
No. 09-10560
in 1993, wherein Muin Shabib, who was later identified at trial as a Hamas
leader, discussed the zakat committees and the extent to which they were “ours,”
meaning Hamas. It was also consistent with a 1991 letter addressed to Baker
found in Elbarasse’s home that discussed various zakat committees and used the
same language to indicate which committees were controlled by Hamas.
Prior to 1995 it was not illegal for HLF to have a relationship with or to
provide support for Hamas. The above evidence was therefore important to
establish the defendants’ relationship with Hamas figures and to demonstrate
their intent when viewed in conjunction with other evidence of their post-1995
conduct. The Government presented evidence through video recordings, letters,
and other documents found in HLF’s possession demonstrating that the
defendants continued to support Hamas. For example, in a 1996 video from a
fundraising event, Abdulqader sent greetings to Hamas leaders. In 1997 HLF
sponsored a teleconference featuring two prominent Hamas speakers. Indeed,
HLF maintained a computerized list of featured speakers, last modified in 1999,
that included numerous individuals who were identified through testimony as
Hamas members. But perhaps the strongest evidence that the defendants
provided support to Hamas after Hamas was designated as a terrorist
organization came through testimony and financial documents showing that
HLF provided funds to the same Hamas-controlled zakat committees that it had
supported before the designation.
The evidence of Hamas control of the zakat committees was substantial.
For example, the Government offered testimony from Dr. Matthew Levitt, an
expert on the subject of Hamas, who testified based on his research that Hamas
controls many of the zakat committees in the West Bank and Gaza. Avi also
testified from his personal study of Hamas that all of the zakat committees
named in the indictment were Hamas institutions. In addition, the Israeli
military seized a voluminous amount of evidence related to Hamas from the
14
No. 09-10560
zakat committees. This evidence included Hamas posters and paraphernalia,
as well as internal Hamas documents and communications. The evidence also
included video recordings seized from the zakat committees showing school
ceremonies and other events consistent with Hamas ideology and Hamas’s use
of its social wing to promote its agenda. Furthermore, numerous individuals
connected to the various zakat committees were identified as prominent Hamas
leaders.
The defendants’ theory at trial largely was that they did not support
Hamas or terrorism, but rather shared a sympathy for the plight of the
Palestinian people through support of the zakat committees and the charitable
work the committees performed. Their view was that the Government never
designated as a terrorist organization any of the zakat committees or anyone
connected to the committees. They argued that the Treasury Department had
to designate a zakat committee before contributions to it would be unlawful,
suggesting that non-designated committees were not controlled by Hamas.
The jury rejected the defense’s theories and credited the Government’s
evidence by finding each defendant guilty of all applicable charges. The district
court imposed sentences ranging from 65 years in prison for Baker and Elashi,
to 20 years for Abdulqader, and 15 years for Odeh and El-Mezain. HLF was
sentenced to one year of probation.
The defendants now appeal, raising multiple claims of error before, during,
and after trial. Despite raising a myriad of issues, including numerous claims
of erroneous evidentiary rulings, the defendants do not challenge the sufficiency
of the evidence to support their convictions. We first address the defendants’
various claims of trial error and their challenge to the jury charge. We then
address a challenge on Fourth Amendment grounds to the search conducted in
HLF’s offices in December 2001, and then turn to three separate Double
Jeopardy issues. Next, we will address the defendants’ issues concerning
15
No. 09-10560
classified information, and then we will consider two separate sentencing
challenges. After considering the issues raised by the individual defendants, we
turn to the separate appeal by HLF as a corporate defendant. Finally, we
consider a separate appeal filed by defense attorney Nancy Hollander.
II. DISCUSSION
A. Testimony of witnesses using pseudonyms
The defendants’ first claim of trial error involves the district court’s
allowance of two witnesses to testify using pseudonyms. One of the witnesses,
who used the name “Avi,” was a legal advisor for the Israeli Security Agency
(“ISA”) and testified as an expert witness about Hamas financing and control of
the zakat committees. The other witness, “Major Lior,” was employed by the
Israeli Defense Forces (“IDF”) and testified as a fact witness to authenticate
documents that IDF had seized during a military operation known as Operation
Defensive Shield. The district court ruled that the witnesses could use
pseudonyms because revealing their true names “would jeopardize national
security and pose a danger to the safety of the witnesses and their families.”
The defendants argue that the use of pseudonyms by Avi and Major Lior
violated the defendants’ Fifth Amendment due process right and their Sixth
Amendment right to confront witnesses.4 The defendants contend that they
could not verify Avi’s and Major Lior’s credentials or investigate them for prior
acts undermining their veracity; they could not present opinion and reputation
evidence about their character for untruthfulness; and they could not develop
other impeachment evidence. They further complain that the district court
ignored procedures under the Classified Information Procedures Act (“CIPA”),
18 U.S.C. app. 3, § 6, designed to protect a defendant’s right to present his
4
Although the defendants mention the Fifth Amendment, their brief addresses only
confrontation and does not distinguish the Due Process Clause from the Sixth Amendment’s
Confrontation Clause. Therefore, we address this issue as a confrontation claim.
16
No. 09-10560
defense when classified information is involved. They further note that besides
Avi the Government could have called another witness it had noticed as an
expert, whose identity was not classified, to testify about Hamas’s control of the
zakat committees, and they posit that their constitutional rights would not have
been violated had the Government done so.
Ordinarily, a district court’s limitation on the scope of the defendant’s
cross-examination of government witnesses is reviewed for abuse of discretion.
See United States v. Bryant, 991 F.2d 171, 175 (5th Cir. 1993). Alleged violations
of the Confrontation Clause of the Sixth Amendment during cross-examination
are reviewed de novo, applying a harmless error standard. United States v.
Diaz, 637 F.3d 592, 597 (5th Cir. 2011). “Where there is no constitutional
violation, we will not find an abuse of the trial court’s discretion absent ‘a
showing that the limitations were clearly prejudicial.’” Id. (citation omitted).
Although the Confrontation Clause guarantees the right of a defendant to
confront his accusers, that “right is not unlimited.” Id. The district court has
discretion “to impose reasonable limits on such cross-examination based on
concerns about, among other things, . . . the witness’ safety . . . .” Delaware v.
Van Arsdall, 475 U.S. 673, 679 (1986). “What is required is that defense counsel
be ‘permitted to expose to the jury the facts from which jurors, as the sole triers
of fact and credibility, could appropriately draw inferences relating to the
reliability of the witness.’” Diaz, 637 F.3d at 597 (citation omitted).
In Smith v. Illinois, 390 U.S. 129 (1968), the Supreme Court found error
in allowing a witness, who testified about purchasing drugs from the defendant,
to use a pseudonym. The Court held that “the very starting point in ‘exposing
falsehood and bringing out the truth’ through cross-examination must
necessarily be to ask the witness who he is and where he lives.” Id. at 131(footnote and citation omitted). The Court recognized that disclosing the
witness’s true identity “open[s] countless avenues of in-court examination and
17
No. 09-10560
out-of-court investigation,” and that closing that avenue “effectively . . .
emasculate[s] the right of cross-examination itself.” Id. The defendants urge
that Smith’s reasoning required disclosure of the witnesses’ true names in this
case. We are not persuaded that Smith dictates that result.
There is “no fixed rule with respect to disclosure.” Roviaro v. United
States, 353 U.S. 53, 62 (1957). Instead, there must be a “balancing [of] the public
interest in protecting the flow of information against the individual’s right to
prepare his defense,” which depends on “the particular circumstances of each
case.” Id. This balancing required disclosure of the witness’s name in Smith
because the “only real question at trial” was the credibility of the single,
principal witness, who was the only person, other than the defendant, who
testified about the crucial events at issue. Smith, 390 U.S. at 130. But Smith,
unlike the instant case, did not involve classified information or issues of witness
safety. See id. at 133–34 (White, J., concurring) (recognizing as beyond the
proper bounds of cross-examination “those inquiries which tend to endanger the
personal safety of the witness”). We must account for these considerations in the
analysis.
Witness safety was a factor in another case involving balancing in United
States v. Celis, 608 F.3d 818, 830–32 (D.C. Cir. 2010), where the District of
Columbia Circuit affirmed the use of pseudonyms by Government witnesses
from Colombia in a prosecution for a drug conspiracy. The defendants and
witnesses were connected to Colombian revolutionaries who had threatened to
kill cooperating witnesses, which justified the concealment of the witnesses’
identities at trial. Id. at 833. Because the Government planned to have the
witnesses testify about their involvement with the defendants and drug
trafficking, however, it was necessary to allow the defendants an opportunity to
attack their credibility. Id. To enable such confrontation, the district court
issued a protective order allowing defense counsel to learn the true names of the
18
No. 09-10560
witnesses for investigative purposes only days before the testimony was to be
given at trial. Id. The court of appeals held that this approach was “an
appropriate balancing of interests in the relevant case-specific context.” Id.In the instant case, the district court conducted a similar balancing of
interests but concluded that there should be no disclosure of the witnesses’ true
names. It held that “defendants’ interest in obtaining the names of the
witnesses is outweighed by the Government’s need to keep the information
secret.” We agree. First, we conclude that there was a serious and clear need
to protect the true identities of Avi and Major Lior because of concerns for their
safety. The Government showed that Hamas and other terrorist organizations
seek out the true identities of ISA agents and their families and publish
descriptions of ISA officers on websites so that they can be targeted. The
witnesses’ names are thus classified under both Israeli law and American law,
and, as noted by the district court, the true identities of the witnesses were
provided to United States authorities with the expectation that they would be
closely guarded and kept secret.
Second, when the national security and safety concerns are balanced
against the defendants’ ability to conduct meaningful cross-examination, the
scale tips in favor of maintaining the secrecy of the witnesses’ names. The
Government disclosed to the defense over twenty volumes of material that Avi
used to formulate his expert opinion about Hamas financing. Moreover, the
Government agreed in pretrial filings that the defense would be permitted to ask
Avi about his background, his training and experience with the ISA, his legal
education, and his potential bias in favor of Israelis in the West Bank. The
defense was therefore well-armed with information upon which to confront and
cross-examine both Avi and Major Lior, and a review of the trial record in fact
shows that the defense was able to conduct effective cross-examination. See Van
Arsdall, 475 U.S. at 679 (“‘[T]he Confrontation Clause guarantees an opportunity
19
No. 09-10560
for effective cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish.’”) (citation
omitted).
As evidence of possible bias, the defense highlighted both witnesses’ close
connection to the Israeli military. With respect to Major Lior, the defense
focused on the military nature of the Israelis’ seizure of evidence from the zakat
committees, and the fact that the military also entered mosques, schools, and
orphanages, thereby casting negative light on both the witness and the military
operation. The defense also elicited from Major Lior the fact that he did not
personally seize the evidence at issue, that he did not know precisely where
inside the zakat committees the various items in evidence were found, and that
he did not know if any items were left behind in the committees. These
questions suggested a lack of knowledge and familiarity with the subject matter,
and also suggested that exculpatory evidence may have been overlooked.
With respect to the cross-examination of Avi, the defense also was able to
ask questions designed to cast doubt on the witness as a biased Israeli security
agent. The defense highlighted for the jury the fact that Avi was testifying
under an assumed name and that defense counsel could not research him or
verify certain opinions. Defense counsel elicited from Avi the fact that he had
never been to a zakat committee or spoken to people who had received assistance
from the committees, he had not been involved in the seizure of evidence from
the committees, and he had not polled Palestinians about the zakat committees.
The defense also asked about Avi’s work product and the materials he relied
upon in reaching his opinions. The defense challenged Avi’s credibility on the
subject of Hamas control of the zakat committees, as well as the basis for his
knowledge, by (1) eliciting the fact that no Hamas materials were found in the
offices of certain zakat committees that Avi claimed were controlled by Hamas,
(2) asking whether he knew that the United States Agency for International
20
No. 09-10560
Development (“USAID”), a government organization, had given money to and
visited a committee that Avi testified was allegedly controlled by Hamas, (3)
showing him statements in Government exhibits that indicated a lack of Hamas
presence in zakat committees that he said were controlled by Hamas, and (4)
asking him questions to demonstrate a lack of knowledge about the internal
election proceedings of the zakat committees.
We conclude from the above that, although the defense could not verify the
witnesses’ credentials, the district court correctly observed that the defendants
had access to significant information regarding the witnesses’ employment,
nationalities, and backgrounds in order to conduct meaningful cross-
examination. They also had access to substantial material that formed the basis
for Avi’s expert opinion. With all of this information, the defense was able to
probe for bias and test the basis of the witnesses’ knowledge. Because “the jury
had sufficient information to appraise the bias and motives of the witness,” there
was no Sixth Amendment violation. United States v. Tansley, 986 F.2d 880, 886
(5th Cir. 1993).
The defendants complain, however, that they were unable to conduct a
focused attack on Avi’s and Major Lior’s credibility, and they argue that the
witnesses’ true identities could have been disclosed for investigative purposes
only to defense counsel under a protective order similar to the order in Celis. We
consider this point as part of a prejudice analysis. See Diaz, 637 F.3d at 599(when there is no Sixth Amendment violation, we “examine whether the trial
court’s restrictions on cross-examination were so prejudicial as to result in an
abuse of discretion”). We agree with the district court that disclosure of the
witnesses’ true names to defense counsel for a limited investigation was unlikely
to yield useful information. Because the names of the witnesses were classified,
unlike in Celis, it is unlikely that anyone who knew the witnesses’ true names
could or would discuss them with defense counsel. The defendants therefore
21
No. 09-10560
cannot show a reasonable probability that the jury might have assessed the
witnesses’ testimony any differently had they been allowed to learn the
witnesses’ true identities. See United States v. Davis, 393 F.3d 540, 548 (5th Cir.
2004) (holding that to demonstrate prejudice the defendant “must show that a
reasonable jury might have had a significantly different impression of the
witness’s credibility if defense counsel had been allowed to pursue the
questioning”). In light of the danger to Avi’s and Major Lior’s personal safety
that could have been caused by disclosure of their true names, and the
unlikelihood that the jury would have assessed credibility any differently, the
district court’s decision to preclude disclosure of the witnesses’ names was not
an abuse of discretion.
Under all the circumstances, the defendants had a more than adequate
“opportunity to place the witness in his proper setting and put the weight of his
testimony and his credibility to a test.” Smith, 390 U.S. at 132; see also Diaz,
637 F.3d at 597; United States v. Abu Marzook, 412 F. Supp. 2d 913, 923–24
(N.D. Ill. 2006) (holding, in a prosecution for materially supporting Hamas, that
ISA agents could testify using pseudonyms because of the classified nature of
their true identities, and that doing so did not violate the defendant’s Sixth
Amendment confrontation rights because the defendant was free to
cross-examine the agents “on the basis of their direct testimony or any other
proper basis”). Moreover, the district court instructed the jury that it could
consider the witnesses’ use of assumed names when assessing the credibility and
weight of the testimony. We therefore hold that the district court did not violate
the defendants’ confrontation rights by allowing Avi and Major Lior to testify
using pseudonyms.
B. Hearsay evidence
The defendants contend that the district court improperly admitted the
following three categories of hearsay evidence that linked the defendants to
22
No. 09-10560
Hamas or that linked Hamas to the zakat committees: (1) the testimony of
Mohamed Shorbagi, (2) documents seized by the Israeli military from the
headquarters of the Palestinian Authority during Operation Defensive Shield,
and (3) documents seized from the homes of unindicted co-conspirators Elbarasse
and Ashqar. We review the district court’s evidentiary rulings for an abuse of
discretion. United States v. Jackson, 636 F.3d 687, 692 (5th Cir. 2011).
Before addressing the defendants’ specific evidentiary challenges, we
pause to note that the hearsay issue, like the defendants’ other evidentiary
issues raised on appeal, is subject to a harmless error analysis if we find there
was an error. See id. A reversal will not be warranted unless the defendant
shows “that the district court’s ruling caused him substantial prejudice.” United
States v. Bishop, 264 F.3d 535, 546 (5th Cir. 2001); see FED. R. EVID. 103(a).
Because the defendants have raised on appeal multiple claims of evidentiary
error at trial, we first address the evidentiary claims to decide if an error
occurred. Except for certain issues related to testimony from John McBrien and
Steven Simon, which we will explain below, we then consider in a combined
discussion whether any errors we identify may be considered harmless.
1. Mohamed Shorbagi
Mohamed Shorbagi was a representative of HLF in Georgia who helped
raise funds for the organization. He pleaded guilty in a separate case to
providing material support to Hamas through HLF, and he testified in the
instant case as part of a plea agreement. Shorbagi testified that Hamas
controlled several zakat committees in the West Bank and Gaza to which HLF
donated money. He also identified several people associated with the
committees as Hamas leaders, and he stated that HLF was a part of Hamas.
The defendants challenge this testimony as improper hearsay, contending that
Shorbagi merely repeated what he had read in newspapers and what he had
learned from friends. At one point during his testimony, the Government asked
23
No. 09-10560
Shorbagi the basis for his knowledge, and he responded: “It came from
newspapers, it came from leaflets, it came from Hamas–the internet later on in
’98, ’99, the website of Hamas, and from also talking among friends.” The
defendants base their argument on appeal in large part on this exchange.
“‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” FED. R. EVID. 801(c). If Shorbagi was merely repeating what
he had read or what someone had told him, it would be hearsay and
inadmissible. See, e.g., Roberts v. City of Shreveport, 397 F.2d 287, 295 (5th Cir.
2005) (newspaper articles are “classic inadmissible hearsay”); see FED. R. EVID.
802. However, Shorbagi’s testimony is more complicated than that, as a review
of the record shows that he possessed personal knowledge of some of the facts to
which he testified.
A witness’s testimony must be based on personal knowledge. United
States v. $92,203.00 in U.S. Currency, 537 F.3d 504, 508 (5th Cir. 2008); see FED.
R. EVID. 602 (“A witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that the witness has personal
knowledge of the matter.”). The personal knowledge requirement and the
hearsay rule “are cut at least in part from the same cloth,” as Rule 602 prevents
a witness from testifying about a hearsay statement upon which he has no
personal knowledge. United States v. Quezada, 754 F.2d 1190, 1195 (5th Cir.
1985). It is axiomatic that a witness may not merely repeat the subject matter
of a hearsay statement, nor may he rely on inadmissible hearsay as a substitute
for his own knowledge. Id. If the evidence supports a finding that the witness
does possess personal knowledge, however, he may testify on that basis. Id. In
the instant case, we conclude that Shorbagi’s testimony revealed a close
association with and knowledge of HLF and the individual defendants, as well
as HLF’s fundraising activity, that demonstrated personal knowledge and made
24
No. 09-10560
his testimony about HLF’s connection with Hamas admissible. His testimony
about Hamas’s control of specific zakat committees is more problematic.
After coming to the United States from Gaza to attend college, Shorbagi
became a volunteer for several Muslim organizations and attended various
conferences sponsored by those organizations around the country. He also
helped raise money first for the Occupied Land Fund and then for HLF. He
continued to raise funds for HLF when he moved to Rome, Georgia, where he
collected donations for HLF as the emam at the mosque and helped coordinate
appearances by HLF speakers. Shorbagi testified about attending closed
meetings at conferences with some of the individual defendants, as well as with
Hamas leaders, such as Marzook and Mishal.
He personally attended a 1994 meeting with Baker, Elashi, and El-
Mezain, where Hamas leader Mishal spoke about Hamas and the role of the
attendees in supporting Hamas. Shorbagi explained that a financial sub-
committee then met in a break-out session headed by defendant El-Mezain.
Shorbagi testified that his personal understanding of the committee’s purpose
was to raise money to donate “[t]o organizations controlled or founded by Hamas
in the occupied territories.” Similarly, Shorbagi was personally present when
El-Mezain came to Rome on a fundraising trip accompanied by Mohamed Siam,
who was shown by other witnesses to be connected to Hamas. Although
Shorbagi’s testimony concerned events that occurred before it became illegal to
donate to Hamas, the testimony demonstrated that he had inside knowledge and
personally knew that HLF’s fundraising aimed to assist Hamas. See United
States v. Cantu, 167 F.3d 198, 204 (5th Cir. 1999) (“Personal knowledge can
include inferences and opinions, so long as they are grounded in personal
observation and experience.”) (internal quotation marks and citation omitted).
Shorbagi also had personal knowledge about HLF’s activity after Hamas
was designated as a terrorist organization. He testified, for example, that HLF
25
No. 09-10560
provided money to the same organizations in the West Bank after Hamas was
designated as a terrorist organization as before the designation, although he
stated that HLF changed its manner of distribution after it opened an office in
Gaza. He explained that Baker had stated that money would be sent to the
Gaza office for further distribution rather than to specific individuals.
Furthermore, Shorbagi testified that the conferences and festivals at
which HLF participated changed after Hamas was designated as a terrorist
organization insofar as Hamas was no longer mentioned in the songs or
speeches. Shorbagi’s testimony was based on personal knowledge, as he
continued to represent HLF at fundraising events during this time. He testified,
for example, that he personally participated in fundraising events in Rome and
Atlanta in 1999.
It is clear from the above testimony that Shorbagi had an adequate basis
to testify about HLF’s purpose in raising money to support Hamas. See
Quezada, 754 F.2d at 1195 (“[E]ven if testimony is based in part on inadmissible
hearsay, Rule 602 will be satisfied if evidence is introduced sufficient to support
a finding that [the witness] has personal knowledge of the matter.”) (internal
quotation marks omitted). Whether Shorbagi had knowledge that Hamas
controlled certain zakat committees is not as clear.
Shorbagi expressly testified that Hamas controlled the zakat committees
in Nablus, Jenin, Ramallah, and Hebron, all of which were charged in the
indictment as receiving funds from HLF. Shorbagi may very well have
personally known that these committees were controlled by Hamas from his
activity in raising money for HLF, from attending conferences with the
individual defendants, and from meeting various Hamas leaders at the
conferences. However, when asked the crucial question as to the basis for this
specific knowledge, Shorbagi gave as examples “newspapers,” “leaflets,” the
“internet,” and “friends.” These sources constitute classic hearsay rather than
26
No. 09-10560
personal knowledge. See, e.g., Roberts, 397 F.2d at 295 (newspapers are
hearsay); United States v. Jackson, 208 F.3d 633, 637 (7th Cir. 2000) (web
postings from the Internet were inadmissible hearsay). In an effort to
rehabilitate Shorbagi’s answer, the Government asked if the “friends” to which
Shorbagi referred were persons who were involved with him in supporting
Hamas and organizations like HLF. But Shorbagi’s affirmative response did not
transform his apparent reliance on the statements of others, whether they were
similarly situated to him or not, into personal knowledge. We therefore conclude
that Shorbagi’s testimony that Hamas controlled the zakat committees was
hearsay, and it was error for the district court to allow it.5 We consider below
whether the error was harmless.
2. Documents seized from the Palestinian Authority
The defendants next challenge on hearsay grounds the admission of three
documents (“the PA documents”) seized by the Israeli military in 2002 from the
PA headquarters in Ramallah. They are: (1) Government exhibit PA 2, an
undated document entitled, “Who is financing Hamas,” that lists HLF as a
financial resource for Hamas; (2) Government exhibit PA 8, entitled “Palestinian
National Authority General Intelligence Ramallah and al-Bireh Government,
Security Work Plan,” a 30-page report indicating that the Ramallah Zakat
Committee “has relations with the Islamic Movement” in Israel, which is
affiliated with Hamas, and that its leaders and members “are Hamas;” and (3)
Government exhibit PA 9, a one-page document dated December 22, 2001,
5
The defendants also complain that Shorbagi impermissibly identified the following
individuals as Hamas leaders: Fuad Abu Zeid from the Jenin Zakat Committee, Abdel Khaleq
Natshe from the zakat committee in Hebron, and Jamil Hamami, who Shorbagi stated was
from an Islamic center in Jerusalem. The basis for Shorbagi’s knowledge about Zeid and
Natshe is not clear from the transcript. Shorbagi testified, however, that he met Hamami on
separate occasions in 1990 and 1994 when Hamami came to the United States to raise money,
which was collected by HLF. He therefore had personal knowledge of Hamami. The effect of
any error in Shorbagi’s identification of Zeid and Natshe is considered below.
27
No. 09-10560
purportedly from Major Khalid Abu-Yaman, Director of Operations, on PA
General Security letterhead concerning the Ramallah Zakat Committee and
asserting that “Officials and members of this committee are associated with the
Hamas Movement and some of them are activists in the Movement.”
The PA documents were excluded from the first trial but admitted at the
second trial over defense objection under FED. R. EVID. 807, the residual
exception to the hearsay rule. The Government argued that the documents had
sufficient indicia of trustworthiness because the Israeli military had seized them
from the PA headquarters and they were therefore akin to public records. The
district court agreed, noting that the documents were not prepared in advance
for litigation purposes and that two of them “appear to have some kind of
letterhead.” We conclude that the Government’s justification for admitting the
documents was insufficient to prove their trustworthiness, and they should have
been excluded from the second trial.
Rule 807’s residual hearsay exception allows the admission of hearsay
statements that are not covered by another exception if the statements have
“equivalent circumstantial guarantees of trustworthiness” and the district court
determines that they are material, probative, and in the interests of justice.6 See
6
The full text of the rule provides as follows:
A statement not specifically covered by Rule 803 or 804 but having equivalent
circumstantial guarantees of trustworthiness, is not excluded by the hearsay
rule, if the court determines that (A) the statement is offered as evidence of a
material fact; (B) the statement is more probative on the point for which it is
offered than any other evidence which the proponent can procure through
reasonable efforts; and (C) the general purposes of these rules and the interests
of justice will best be served by admission of the statement into evidence.
However, a statement may not be admitted under this exception unless the
proponent of it makes known to the adverse party sufficiently in advance of the
trial or hearing to provide the adverse party with a fair opportunity to prepare
to meet it, the proponent’s intention to offer the statement and the particulars
of it, including the name and address of the declarant.
FED. R. EVID. 807. Rule 807 was formerly embodied in the residual exceptions of former Rules
28
No. 09-10560
FED. R. EVID. 807; United States v. Ismoila, 100 F.3d 380, 393 (5th Cir. 1996).
The district court is given wide latitude in admitting evidence under the rule,
and we “will not disturb the district court’s application of the exception absent
a definite and firm conviction that the court made a clear error of judgment in
the conclusion it reached based upon a weighing of the relevant factors.” United
States v. Phillips, 219 F.3d 404, 419 n.23 (5th Cir. 2000) (internal quotation
marks and citation omitted). Nevertheless, the “exception is to be ‘used only
rarely, in truly exceptional cases.’” Id. (citation omitted). Moreover, “[t]he
proponent of the statement bears a heavy burden to come forward with indicia
of both trustworthiness and probative force. In order to find a statement
trustworthy, a court must find that the declarant of the . . . statement ‘was
particularly likely to be telling the truth when the statement was made.’” Id.(internal quotation marks and citations omitted).
We therefore focus on the “equivalent circumstantial guarantees of
trustworthiness” requirement, which is the “lodestar of the residual hearsay
exception analysis.” United States v. Walker, 410 F.3d 754, 758 (5th Cir. 2005).
The determination of trustworthiness is “drawn from the totality of the
circumstances surrounding the making of the statement, but [it] cannot stem
from other corroborating evidence.” Ismoila, 100 F.3d at 393 (citing Idaho v.
Wright, 497 U.S. 805, 820–22 (1990)). “[E]vidence possessing ‘particularized
guarantees of trustworthiness’ must be at least as reliable as evidence admitted
under a firmly rooted hearsay exception . . . [and] must similarly be so
trustworthy that adversarial testing would add little to its reliability.” Wright,
497 U.S. at 821 (citations omitted).
803(24) and 804(b)(5), which were consolidated into Rule 807 in 1997 with no intended change
in meaning. See United States v. Walker, 410 F.3d 754, 757 (5th Cir. 2005) (citing FED. R.
EVID. 803 advisory committee’s note).
29
No. 09-10560
As it argued to the district court, the Government maintains on appeal
that the PA documents are reliable and trustworthy because they are essentially
public records, which ordinarily are admissible under Rule 803(8).7 It is
therefore proper to measure the PA documents against the requirements of the
public records exception. See 2 KENNETH S. BROUN, MCCORMICK ON EVID. § 324
(6th ed.) (noting that for purposes of Rule 807 “courts frequently compare the
circumstances surrounding the statement to the closest hearsay exception”); see
also United States v. Wilson, 249 F.3d 366, 375–76 (5th Cir. 2001) (holding that,
although foreign bank records were not admissible under the business records
exception because there was no custodian available to testify, the district court
properly admitted the documents under Rule 807 because “bank documents, like
other business records, provide circumstantial guarantees of trustworthiness
because the banks and their customers rely on their accuracy in the course of
business”), abrogated on other grounds by Whitfield v. United States, 543 U.S.
209 (2005).
The public records exception to the hearsay rule “is designed to permit the
admission into evidence of public records prepared for purposes independent of
specific litigation.” Quezada, 754 F.2d at 1194. It is based on the notion that
public records are reliable because there is a “lack of . . . motivation on the part
7
The rule provides that the following evidence is admissible:
Records, reports, statements, or data compilations, in any form, of public offices
or agencies, setting forth (A) the activities of the office or agency, or (B) matters
observed pursuant to duty imposed by law as to which matters there was a duty
to report, excluding, however, in criminal cases matters observed by police
officers and other law enforcement personnel, or (C) in civil actions and
proceedings and against the Government in criminal cases, factual findings
resulting from an investigation made pursuant to authority granted by law,
unless the sources of information or other circumstances indicate lack of
trustworthiness.
FED. R. EVID. 803(8).
30
No. 09-10560
of the recording official to do other than mechanically register an unambiguous
factual matter.” Id.; see also Moss v. Ole South Real Estate, Inc., 933 F.2d 1300,
1308 (5th Cir. 1991) (explaining that the public records hearsay exception is
premised on “public officials doing their legal duties,” such that the usual
“distrust” of statements made by out-of-court declarants does not apply). The
Government contends that the PA documents have sufficient circumstantial
guarantees of trustworthiness as public documents under Rule 803(8)(A) and
803(8)(B) because the facts in the documents merely represent “activities of the
office” or “matters observed pursuant to duty.”8
The matters reported in the PA documents have nothing to do with the
PA’s own activity, but rather describe the activities and financing of Hamas.
Therefore, the guarantee of trustworthiness associated with a public agency
merely recording its own actions is not present. See Rule 803(8)(A). Moreover,
the conclusions stated in the PA documents are not the kind of objective factual
matters we have found to be reliable under Rule 803(8)(B) when reported as a
matter of course. See, e.g., Quezada, 754 F.2d at 1194 (holding that deportation
record containing date and location of deportation was reliable under Rule
803(8)(B) because the document contained a “routine, objective observation[],
made as part of the everyday function of the preparing official”); United States
8
The defendants contend that if the documents are public records, they fall under
subsection (C) and are inadmissible because public records under that subsection may not be
used against a defendant in a criminal case. See FED. R. EVID. 803(8)(C). We do not resolve
this issue because the question is not whether the documents are admissible under Rule
803(8), but rather whether they have sufficient indicia of trustworthiness that would permit
admission under Rule 807. See Wilson, 249 F.3d at 374 n.5 (Rule “807 ‘is not limited in
availability as to types of evidence not addressed in other exceptions . . . 807 is also available
when the proponent fails to meet the standards set forth in the other exceptions.’”) (citation
omitted); 2 KENNETH S. BROUN, MCCORMICK ON EVID. § 324 (6th ed.) (“The almost unanimous
opinion of the courts is that failing to qualify under an enumerated exception does not
disqualify admission under the residual exception.”). The Government promotes Rule
803(8)(A) and (8)(B) as providing circumstantial guarantees of trustworthiness to the PA
documents, but as we explain, we are not persuaded by this argument.
31
No. 09-10560
v. Dancy, 861 F.2d 77, 79–80 (5th Cir. 1988) (finding that fingerprint card
containing defendant’s fingerprints, physical description, sentence, and prison
reporting date admissible under Rule 803(8)(B)); United States v. Puente, 826
F.2d 1415, 1417 (5th Cir. 1987) (holding that computer printouts showing that
vehicle crossed the border at a specific time were reliable under Rule 803(8)(B)
because license plate number was observed and recorded by customs officer
complying with agency directives and procedures that were adopted to carry out
its legal duty to protect the border). Instead, the PA documents contain
conclusions about Hamas control of the Ramallah Zakat Committee and the
sources of Hamas financing that were reached through unknown evaluative
means.
This leads to a larger problem with the documents: there is nothing known
about the circumstances under which the documents were created, the duty of
the authors to prepare such documents, the procedures and methods used to
reach the stated conclusions, and, in the case of two of the documents, the
identities of the authors. See, e.g., United States v. Vidacak, 553 F.3d 344, 351
(4th Cir. 2009) (holding that records seized from a brigade headquarters showing
that the defendant had served in the Serbian army were admissible as public
records where a witness testified about the documents’ seizure and explained
how the army maintained and organized its records pursuant to specific
procedures); United States v. Dumeisi, 424 F.3d 566, 575–77 (7th Cir. 2005)
(holding Iraqi intelligence documents admissible under Rule 807 where
witnesses positively identified the documents, as well as handwriting, symbols,
codes, abbreviations, and signatures on them, and also testified that the officers
had a duty to accurately record their activities and information received from
other sources).
We know only that the PA documents were found in the possession of the
PA. Although Avi testified that the PA had an interest in monitoring Hamas
32
No. 09-10560
and the zakat committees, there is nothing in the documents or the record that
reveals whether the declarants had firsthand knowledge of the information
reported, where or how they obtained the information, and whether there was
a legal duty to report the matter. See United States v. Cent. Gulf Lines, Inc., 974
F.2d 621, 626 & n.10 (5th Cir. 1992) (holding that for evidence to be admissible
under public records hearsay exception, person making report must have
observed matters first hand and acted pursuant to a legal duty); United States
v. Perlmuter, 693 F.2d 1290, 1293–94 (9th Cir. 1982) (same); see also 4
CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, FED. EVID. § 8:88 (3d ed.)
(for public records falling under Rule 803(8)(B) “the source of the recorded
information must have personal knowledge, as the phrase ‘matters observed’
implies”).
For example, nothing is known or can be inferred about the author of PA
2, which is not on official letterhead and contains an illegible signature. The
document also contains apparent double hearsay because it refers vaguely to
unnamed “Western Sources,” “security experts,” and “western security
organizations.” PA 8 is on plain paper with a spiral binding and contains no
certifications, signatures, letterhead, official seals, or other indicia of official
record keeping, except for a notation that vaguely reads, “Prepared by: The
Operation Room.” It contains nothing further about where the reported
information was obtained. PA 9 is on letterhead and identifies the declarant,
but it contains only conclusory statements with no explanation of how or why the
document was created.
The Government argues that the PA had a “strong incentive” to report
accurate information about Hamas. There is no doubt that may be true, but the
Government points to nothing in the record about the PA’s practice of record
keeping. There is also nothing in the documents or the record showing that the
declarants in these documents were especially likely to be telling the truth. See
33
No. 09-10560
Phillips, 219 F.3d at 419 n.23. We therefore cannot say that there was little to
gain from further adversarial testing. Without further information about the
circumstances under which the PA documents were created, we are faced with
conclusory assertions amounting to classic hearsay and no facts from which to
divine the documents’ reliability.
We realize that when dealing with foreign documents, it may not be
possible for the Government to learn every detail about the evidence, especially
when it has been seized in a military operation. We do not foreclose the
possibility that obtaining documents in such a manner from an adversary may
have some probative value and could, at least under some circumstances, be
indicative of trustworthiness. But the instant documents were not offered
merely for their probative value, and their seizure from the PA, without more,
does not impart sufficient indicia of trustworthiness in this case to permit their
admission. We do not even know, for example, if the PA created PA 2 and PA 8,
or whether the documents were created by some third person or agency and were
merely collected by the PA as intelligence. See, e.g., United States v. Doyle, 130
F.3d 523, 547 (2d Cir. 1997) (questioning reliability of “privately-generated,
business records without further foundation, even though the records were found
in the possession of a foreign government agency”). We therefore conclude that
the district court erred in finding that the PA documents contained sufficient
indicia of trustworthiness pursuant to Rule 807’s residual hearsay exception.
3. Elbarasse and Ashqar documents
Finally, the defendants raise a hearsay challenge to the admission of
documents discovered in the homes of unindicted co-conspirators Ismail
Elbarasse and Abdelhaleen Masan Ashqar (together “the Elbarasse and Ashqar
documents”). The documents, which dated from the late 1980s and early 1990s,
were discovered by the FBI pursuant to search warrants. They included annual
reports, meeting agendas and minutes, financial records, work papers, and
34
No. 09-10560
telephone directories that documented the activities of the Palestine Committee
and demonstrated the defendants’ participation with the Committee. Many of
the documents referenced defendants Elashi, El-Mezain, and Baker by name, as
well as HLF. Viewed in the light most favorable to the Government, the
Elbarasse and Ashqar documents showed that HLF was a fundraising arm for
the Palestine Committee in support of Hamas.
For example, one of the documents, Elbarasse exhibit 13, was a 1989–90
“annual report” for the “Palestine Committee.” It reported the “achievement” of
raising over $728,000 by the Occupied Land Fund, the former name of HLF, for
“people on the inside.” It also asked the United States Muslim Brotherhood for
“moral support” for the committee’s work in “support for the emerging
movement, the Hamas Movement.” Elbarasse exhibit 7 was another Palestine
Committee document. It contained proposed amendments to the Committee’s
by-laws, and it expressly recognized HLF as “the official organization which
represents the financial and charitable aspect to support the homeland people
in the occupied territories.” The document further noted that the Muslim
Brotherhood had issued instructions to collect donations “for the Islamic
Resistance Movement.” Still another document, Elbarasse exhibit 11, was a
meeting agenda for the “Financial Committee.” Referencing HLF as “the Fund,”
the agenda set forth work assignments for Elashi, Baker, and El-Mezain. An
organizational chart for the “Palestine Committee,” Elbarasse exhibit 10, showed
Hamas leader Marzook as the Chairman. It also showed the Committee
functions served by HLF, Baker, El-Mezain, Elashi, and Elbarasse.
The defendants objected to the Elbarasse and Ashqar documents as
hearsay, arguing that many of them were unsigned and pre-dated Hamas’s
designation as a terrorist organization. The district court admitted them as non-
hearsay statements of co-conspirators pursuant to Rule 801(d)(2)(E) of the
Federal Rules of Evidence. The defendants argue on appeal that the district
35
No. 09-10560
court abused its discretion in admitting the documents because Rule 801(d)(2)(E)
applies only to statements made in furtherance of conspiracies, and the
Elbarasse and Ashqar documents could not have been made in furtherance of a
conspiracy to support Hamas since they were created before 1995 when such
support became illegal. The defendants further argue that the Government
failed to show that there was an agreement between the declarants and the
defendants, or that the documents were made in furtherance of that agreement.
The defendants insist that the documents are therefore inadmissible hearsay.
“A statement is not hearsay if . . . [t]he statement is offered against a party
and is . . . a statement by a coconspirator of a party during the course and in
furtherance of the conspiracy.” FED. R. EVID. 801(d)(2)(E). “Under our
precedent, ‘[t]he proponent of admittance under Rule 801(d)(2)(E) must prove by
a preponderance of the evidence (1) the existence of a conspiracy, (2) the
statement was made by a co-conspirator of the party, (3) the statement was
made during the course of the conspiracy, and (4) the statement was made in
furtherance of the conspiracy.’” United States v. Solis, 299 F.3d 420, 443 (5th
Cir. 2002) (quoting Phillips, 219 F.3d at 418 n. 21). The content of the statement
may be considered as part of the analysis, but there must also be independent
evidence establishing the factual predicates for Rule 801(d)(2)(E). See United
States v. Sudeen, 434 F.3d 384, 390 (5th Cir. 2005).
Although the rule speaks of statements made in furtherance of a
“conspiracy,” we have recognized that admissibility under Rule 801(d)(2)(E) does
not turn on the criminal nature of the endeavor. See United States v. Postal, 589
F.2d 862, 886 n.41 (5th Cir. 1979). Instead, a statement may be admissible
under Rule 801(d)(2)(E) if it is made in furtherance of a lawful joint undertaking.
“One can qualify as a ‘joint venturer’ for the purposes of Rule 801(d)(2)(E) merely
by engaging in a joint plan–distinct from the criminal conspiracy charged–that
was non-criminal in nature.” United States v. Holy Land Found. for Relief &
36
No. 09-10560
Dev., 624 F.3d 685, 694 (5th Cir. 2010); see also United States v. Saimiento-Rozo,
676 F.2d 146, 149 (5th Cir. 1982) (noting that under Rule 801(d)(2)(E) there is
no “need [for] the conspiracy or agreement [to] be criminal in nature; it may be
in the form of a joint venture”). Pursuant to this “joint venture” theory, a
statement is not hearsay if it was made during the course and in furtherance of
a common plan or endeavor with a party, regardless of the non-criminal nature
of that endeavor.
For example, in Postal we held that a ship’s logbook was admissible under
Rule 801(d)(2)(E) as a co-conspirator statement in a drug conspiracy prosecution
because “it is not necessary that the conspiracy upon which admissibility of the
statement is predicated be that charged. Moreover, the agreement need not be
criminal in nature.” Postal, 589 F.2d at 886 n.41. We concluded that the ship’s
crew were engaged in the voyage of the ship, which “was a ‘joint venture’ in and
of itself apart from the illegality of its purpose,” and the logbook was created in
furtherance of the voyage. Id. In support of the conclusion that an agreement
between co-conspirators need not be unlawful to support admission under Rule
801(d)(2)(E), we quoted the legislative history of the rule:
“While (this) rule refers to a coconspirator, it is this committee’s
understanding that the rule is meant to carry forward the
universally accepted doctrine that a joint venturer is considered as
a coconspirator for the purposes of this rule even though no
conspiracy has been charged.”
Id. (quoting S. Rep. No. 93-1277, 93d Cong., 2d Sess. 24, Reprinted in (1974) U.S.
Code Cong. & Admin. News, pp. 7051, 7073).
In light of our precedent, it is of no moment for purposes of Rule
801(d)(2)(E) that the Elbarasse and Ashqar documents were created before
Hamas was designated as a terrorist organization if the statements were made
as part of a joint plan with the defendants, and as long as the other
requirements of the rule are satisfied. The defendants argue that Postal
37
No. 09-10560
misread the legislative history of Rule 801(d)(2)(E), and they urge us to reject
the so-called “lawful joint venture theory.” However, our circuit has embraced
the theory in precedent that we may not ignore. See United States v. Castro-
Guevarra, 575 F.3d 550, 552 (5th Cir. 2009) (“[O]ne panel of this court may not
overrule another panel’s earlier decision.”).
Moreover, we are not alone in our construction of Rule 801(d)(2)(E), as our
sister circuits have also held that statements made in furtherance of a lawful
common enterprise are admissible. See, e.g., United States v. Gewin, 471 F.3d
197, 201 (D.C. Cir. 2006) (holding that “the rule, based on concepts of agency and
partnership law and applicable in both civil and criminal trials, ‘embodies the
long-standing doctrine that when two or more individuals are acting in concert
toward a common goal, the out-of-court statements of one are . . . admissible
against the others, if made in furtherance of the common goal’”); United States
v. Layton, 855 F.2d 1388, 1400 (9th Cir. 1988) (“Rule 801(d)(2)(E) applies to
statements made during the course and in furtherance of any enterprise,
whether legal or illegal, in which the declarant and the defendant jointly
participated.”), overruled on other grounds as recognized by Guam v. Ignacio, 10
F.3d 608, 612 n.2 (9th Cir. 1993); United States v. Regilio, 669 F.2d 1169, 1174
n.4 (7th Cir. 1981) (“The co-conspirator hearsay exception applies with equal
force to joint ventures.”); see also 4 CHRISTOPHER B. MUELLER & LAIRD C.
KIRKPATRICK, FED. EVID. § 8:59 (3d ed.) (“[T]he exception can apply if people act
together by mutual understanding in pursuit of a common purpose . . . . The
exception can apply even if the proponent does not show that the venture is
unlawful . . . .”).
As the Seventh Circuit has explained, “[c]onspiracy as an evidentiary rule
differs from conspiracy as a crime. The crime of conspiracy comprehends much
more than just a joint venture or concerted action, whereas the evidentiary rule
of conspiracy is founded on concepts of agency law.” United States v. Coe, 718
38
No. 09-10560
F.2d 830, 835 (7th Cir. 1983). Just as coconspirators are generally considered
partners in crime and therefore agents of each other, joint venturers may be
considered partners in the joint undertaking. See id. Indeed, Rule 801(d)(2)(E)
has been recognized to apply not only in criminal cases but also in civil cases
where “there may be no criminal conspiracy or unlawful actions involved.” Id.at 836 n.3. Under this rationale, the Government need not show that the
defendant and the declarant were engaged in an illegal conspiracy but rather
must show only “that there was a combination between them.” Id. at 835(internal quotation marks and citation omitted). We therefore reaffirm our
precedent that Rule 801(d)(2)(E) does not require that a statement be made in
furtherance of a criminal undertaking in order to be admissible as non-hearsay.
Turning to the application of the joint venture theory to the Elbarasse and
Ashqar documents, we conclude that a preponderance of the evidence proved
that the documents were created as part of a common enterprise, of which the
defendants and declarants were members. The documents were therefore
admissible. The documents themselves outline the Palestine Committee’s
activities and goals, and in some instances they specifically refer to the functions
of HLF and the individual defendants in support of those goals. The
Government’s theory of the case was that the defendants supported Hamas by
coordinating activities of the Palestine Committee and HLF. The documents
themselves are consistent with this theory.
We are satisfied that independent evidence also established the existence
of a joint venture or combination among the declarants and the defendants to
support Hamas through HLF and the zakat committees. For example,
participants at the Philadelphia meeting discussed Hamas and its control of the
zakat committees. The participants referenced the importance of HLF in the
Committee’s goals, and they identified as “ours” various zakat committees to
which HLF donated funds. The Government also introduced evidence of
39
No. 09-10560
numerous financial transactions and personal contact between the defendants
and Hamas leader Marzook, who was listed in the Elbarasse and Ashqar
documents as chairman of the Palestine Committee. Marzook also had in his
personal phone book the contact information for Baker, Elashi, El-Mezain, and
Elbarasse. Further, Hamas leader Mishal spoke at a meeting attended by
Baker, Elashi, El-Mezain, and Ashqar about supporting Hamas. According to
Shorbagi, who was present, El-Mezain led a break-out group at that meeting to
discuss the financial issue of raising money. Moreover, Shorbagi specifically
testified from personal knowledge that HLF was part of Hamas.
The evidence also showed a relationship between the defendants and
Elbarasse and Ashqar. For example, Elbarasse shared a bank account with
Hamas leader Marzook, from which $100,000 was paid to HLF in 1992.
Elbarasse and Ashqar also attended the Philadelphia meeting. When a dispute
arose between HLF and Ashqar about the proceeds generated from a Hamas
leader’s speaking appearances, Marzook and other Palestine Committee
members intervened and directed that the proceeds be administered by HLF.
We conclude that the evidence at trial was more than sufficient to demonstrate
the existence of a joint enterprise to support Hamas through HLF and the zakat
committees, as well as concert of action toward that common goal through the
Palestine Committee. We also find that the Elbarasse and Ashqar documents
were made “in furtherance” of the common goal, as the documents outlined and
facilitated the Committee’s objectives. See United States v. Snyder, 930 F.2d
1090, 1095 (5th Cir. 1991) (the “in furtherance” requirement is not to be applied
too strictly and is satisfied if a statement “advances the ultimate objectives of
the conspiracy”).
In support of their argument against admissibility of the Elbarasse and
Ashqar documents, the defendants rely on United States v. Al-Moayad, 545 F.3d
139, 172–76 (2d Cir. 2008), where the Second Circuit held that the district court
40
No. 09-10560
erroneously admitted three pieces of evidence under Rule 801(d)(2)(E). In that
case, the defendant Al-Moayad was prosecuted for providing material aid and
support to Hamas and Al-Qaeda. The evidence at issue was offered to show the
defendant’s connection to terrorists and his predisposition to terrorist activity.
It consisted of (1) an application form for admittance to a mujahidin training
camp that listed the defendant as the applicant’s sponsor; (2) a video of a
wedding hosted by the defendant where a Hamas leader gave a speech referring
to a suicide bombing; and (3) the last will and testament of a mujahidin fighter
whose address book included the defendant’s name. Id. The Second Circuit held
that the application form, the video, and the will were not admissible as co-
conspirator statements because they provided evidence of only vague
relationships rather than joint involvement in a conspiracy. Id. The court noted
that there was no evidence the defendant knew the applicant who submitted the
mujahidin form, that the wedding video showed only a “general tie[]” to Hamas,
and that the last will and testament did not show any shared criminal activity
between the defendant and the testator. Id.The defendants argue that Al-Moayad is analogous to the instant case.
We are not convinced. Unlike Al-Moayad, the evidence in this case does show
a relationship between the defendants and Elbarasse and Ashqar, as well as
their connections to Hamas leaders. The documents further show shared
activity by the defendants and the declarants in the Palestine Committee, and
they indicate that HLF was the principal fundraising apparatus for the
Committee’s goal of supporting Hamas. The record here, unlike Al-Moayad,
showed the defendants’ joint participation in a shared undertaking involving the
Committee, and the documents were properly admitted under Rule 801(d)(2)(E).
The defendants further complain that many of the Elbarasse and Ashqar
documents are anonymous, and therefore there could be no showing of an
agreement between the declarants and the defendants. The failure of a
41
No. 09-10560
document to identify the declarant is not fatal to admissibility under Rule
801(d)(2)(E), however, if the facts and circumstances surrounding the making of
the statement indicate that the speaker is a member of the conspiracy or joint
venture. For instance, in Postal, we stated that even though the author of the
ship’s logbook was unknown, the statements in the logbook were still admissible
pursuant to Rule 801(d)(2)(E). Postal, 589 F.2d at 886 n.41. We reasoned that
circumstantial evidence made it “inescapable” that the logbook belonged to the
ship and that one or more of the ship’s crew made the statements. Id. We noted,
for example, that the log was the “only such book found,” its notations
corresponded with charts that were also found on board, and the log’s final entry
corresponded closely to the time and course of the ship that was recorded while
the ship had been under surveillance. Id.We applied similar reasoning in United States v. Fierro, 38 F.3d 761 (5th
Cir. 1994), where two of the defendants argued that drug ledgers were
improperly admitted as statements of co-conspirators under Rule 801(d)(2)(E)
because the Government did not prove who authored the ledgers. We held that
“identification of the declarant–such as the author of a drug ledger–is not always
necessary for the admission of a co-conspirator statement.” Id. at 773. Other
evidence in Fierro connected the defendants to the ledgers, including the fact
that both of the defendants “lived in the house where the ledgers were found,
and there was other evidence of their involvement in the cocaine conspiracy,
including [the two defendants’] connections and activities with the other
defendants.” Id.; cf. Davis v. Mobil Oil Exploration & Producing Se., Inc., 864
F.2d 1171, 1174 (5th Cir. 1989) (holding that anonymous statement was
admissible as a statement by a party’s agent under Rule 801(d)(2)(D), and noting
that “a district court should be presented with sufficient evidence to conclude
that the person who is alleged to have made the damaging statement is in fact
a party or an agent of that party”).
42
No. 09-10560
Our conclusions in the above cases are consistent with those of our sister
circuits, which have also held that anonymous statements may be admissible
under Rule 801(d)(2)(E) if sufficient evidence is presented to connect the
declarant with the conspiracy at issue. For example, in United States v.
Martinez, 430 F.3d 317 (6th Cir. 2005), the defendant argued that the
Government failed to prove “that the anonymous declarant was a member of the
conspiracy.” Id. at 326. The Sixth Circuit held that “[a]n anonymous statement
may be admissible under Rule 801(d)(2)(E) if circumstantial evidence permits a
finding by a preponderance of the evidence that there was a conspiracy involving
the author and the defendant . . . .” Id. The court stated that the essential
requirement is that “the government show that the unknown declarant was
more likely than not a conspirator.” Id. (internal quotation marks and citation
omitted). In applying this standard, the court reasoned that the Government
had established that an unsigned letter was more likely than not written by a
member of the conspiracy, because “[t]he letter was found in a place connected
to one of the conspirators and purports to be from someone knowledgeable about
and involved in the conspiracy . . . .” Id.; see also United States v. Smith, 223
F.3d 554, 570 (7th Cir. 2000) (holding that an anonymous list was admissible
under Rule 801(d)(2)(E) because “[t]he details contained in ‘The List’ were such
that it could only have been written by a member of the [street gang] or by
someone sufficiently involved with the business to be intimately familiar with
it—in other words, by a co-conspirator”); United States v. Dynalectric Co., 859
F.2d 1559, 1582 (11th Cir. 1988) (holding that statements made by an
unidentified telephone caller were properly admitted under Rule 801(d)(2)(E)
because “it is clear from the testimony and the context that the caller was
associated” with members of the alleged conspiracy); United States v.
Zuniga-Perez, 69 F. App’x 906, 913 (10th Cir. 2003) (holding that the identity of
the declarant need not be established as a predicate for Rule 801(d)(2)(E) “so
43
No. 09-10560
long as the district court determines that the declarant was a member of a
conspiracy with the defendant and that the statement was made in the course
of and in furtherance of the conspiracy”); 4 CHRISTOPHER B. MUELLER & LAIRD
C. KIRKPATRICK, FED. EVID. § 8:59 (3d ed.) (“[A]n inability to attribute the
statement to any particular person does not necessarily get in the way” of
admissibility under Rule 801(d)(2)(E) because “[c]ircumstantial proof that the
person making the statement was involved in the conspiracy can suffice to
support use of the exception.”).
As the above cases demonstrate, the defendants here “are wrong to suggest
that it is necessary to know the precise identity of” the declarants in the
Elbarasse and Ashqar documents. Smith, 223 F.3d at 570. We conclude that the
circumstantial evidence in this case made it “inescapable” that the declarants
in the documents were joint venturers with the defendants in support of Hamas
through the Palestine Committee. For example, as noted above, the participants
at the Philadelphia meeting referred to various zakat committees, including
Ramallah and ICS Hebron, as “ours.” The same language appears in Elbarasse
exhibit 22, a letter addressed to Baker that also referred to the committees as
“ours.” The letter further identified many of the same committee members
whose names appeared in other evidence the Government introduced to
establish the composition of the committees.
Another of the documents, Elbarasse Search 15, was a “Resolution relating
to the Occupied Land Fund.” The resolution was from the head of the “Central
Committee” and reported on issues decided at a board of directors meeting,
including the salaries for Baker, Elashi, and El-Mezain. The board of directors
meeting referenced in the document was also corroborated by records later found
at HLF. The similarity between the Elbarasse and Ashqar documents and other
independent evidence is striking and strongly supports the conclusion that the
declarants were involved in the same undertaking as the defendants.
44
No. 09-10560
The documents were also found in the homes of Elbarasse and Ashqar,
whose relationship to the defendants and the Palestine Committee was
established by the evidence. We also think that many of the documents–which
included internal records such as annual reports, by-laws, organizational charts,
and meeting agendas–were of a kind unlikely to be found in the hands of persons
outside the enterprise. The documents discussed internal activities, including
the relationship and goals of the participants in the endeavor, HLF’s financial
matters, and even the change in the name of HLF from the Occupied Land Fund.
A declarant who was not involved with activities of the defendants and HLF
would be unlikely to know about these issues. We are therefore satisfied that
the documents were drafted by insiders participating in the venture and were
designed to be in furtherance of the common goals of the Palestine Committee.
The documents were therefore admissible under Rule 801(d)(2)(E).
The defendants also suggest in their brief that the Elbarasse and Ashqar
documents should not have been admitted because there was no evidence that
they had ever seen the documents or knew of their contents. In order to admit
a co-conspirator’s statement under Rule 801(d)(2)(E), however, it is not
necessary that another co-conspirator know about the statement. This is
consistent with the principle that a co-conspirator’s statements are admissible
under a general agency rationale insofar as one conspirator may be held
responsible for the statements of another conspirator in furtherance of that
conspiracy whether or not he was present when the statement was made. See
Lutwak v. United States, 344 U.S. 604, 617 (1953) (“Declarations of one
conspirator may be used against the other conspirator not present on the theory
that the declarant is the agent of the other, and the admissions of one are
admissible against both under a standard exception to the hearsay rule
applicable to the statement of a party.”) (emphasis added). Even assuming
arguendo that the defendants here were unaware of the contents of the
45
No. 09-10560
Elbarrasse and Ashqar documents, which may be doubtful given that certain
documents refer to some of the defendants by name, admissibility under Rule
801(d)(2)(E) was not precluded. See 5-801 WEINSTEIN’S FED. EVID. § 801.34 (“A
defendant need not have been aware of particular transactions within the
conspiracy for statements in furtherance of those transactions to be admissible
against him or her.”).
In sum, we conclude that the lawful joint venture theory is a viable theory
of admissibility under Rule 801(d)(2)(E) and the anonymity of the documents
here did not bar their admission because the evidence was sufficient to show the
documents were created as part of a joint undertaking between the declarants
and the defendants. The district court did not abuse its discretion in admitting
the Elbarasse and Ashqar documents pursuant to Rule 801(d)(2)(E).
C. Prejudicial evidence under Rule 403
The defendants next contend that the district court erred by admitting
evidence that they argue was unfairly more prejudicial than probative. They
specifically challenge evidence related to Hamas violence, including: testimony
about Hamas suicide bombings, including an explanation of how suicide bombers
choose their targets, carry out their plans, and prepare bombs to make them
more lethal; testimony regarding Hamas’s killing of collaborators with Israel;
videotapes of demonstrators destroying American flags; and violent images of
the aftermath of Hamas suicide bombings found in temporary files on HLF
computers. Other evidence that they argue was improper and prejudicial
included: videos of Palestinian children playing the role of terrorists in school
ceremonies; Avi’s testimony about PA parliamentary elections and the political
maneuverings of Hamas; a video found in HLF’s possession depicting the
opening of a library in the West Bank but also containing an allegedly unrelated
fragment showing the burning of an American flag; several questions about Iraq,
Saddam Hussein, and the Muslim Legal Defense Fund; videos, photographs, and
46
No. 09-10560
posters of suicide bombers that the Israeli military seized from West Bank zakat
committees after HLF had closed; and the Elbarasse and Ashqar documents.
Rule 403 of the Federal Rules of Evidence provides that “[a]lthough
relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice . . . .” The scope of Rule 403 is
narrow. Because virtually all evidence is prejudicial, the danger of unfair
prejudice must substantially outweigh the probative value of the evidence to
warrant exclusion. United States v. Fields, 483 F.3d 313, 354 (5th Cir. 2007).
Accordingly, our review is especially deferential to the district court, and the
appellant must show “a clear abuse of discretion.” United States v. Curtis, 635
F.3d 704, 716 (5th Cir. 2011) (internal quotation marks and citation omitted).
We have previously cautioned that “[r]are is the appellant who can make that
showing,” and that “district courts should exclude evidence under Rule 403 in
very few circumstances.” Id. We conclude that the defendants have not shown
such circumstances in the instant case.
Although the defendants correctly observe that they were not charged with
planning or carrying out terrorist activity or with directly supporting such
activity, evidence of Hamas violence, some of which was found in the zakat
committees or on HLF computers, served the probative purpose of providing
context and explanation in the case, and to rebut defensive theories that the
defendants intended to support only charitable endeavors. For example,
testimony about suicide bombings from Dr. Levitt came as explanation of
Hamas’s operations, specifically showing how Hamas operates not only a social
wing but also a military wing that carries out such bomb attacks. This was
relevant to show that HLF’s purportedly charitable donations also indirectly
aided Hamas’s violent activities.9 See Holder v. Humanitarian Law Project, 130
9
Similarly, Dr. Levitt also testified that Hamas operates schools as part of its social
wing, where it teaches Hamas ideology. To assist the jury in evaluating this testimony, the
47
No. 09-10560
S. Ct. 2705, 2725–26 & n.6 (2010) (recognizing that “[m]oney is fungible” and
that “material support of a terrorist group’s lawful activities facilitates the
group’s ability to attract ‘funds,’ ‘financing,’ and ‘goods’ that will further its
terrorist acts”).
Avi also testified about two suicide bombings, testimony that the
defendants challenge as improper under Rule 403. Avi explained that the first
attack, at a discotheque, was carried out by a person whose photograph was
found at one of the zakat committees. This testimony therefore connected the
committee with Hamas activity. The second suicide attack about which Avi
testified occurred at a hotel and precipitated the Israeli military’s raid on the
zakat committees. This testimony served two functions. First, it provided
helpful context by explaining the reason for the Israeli military operation, which
was the source of much of the evidence introduced at trial. See, e.g., United
States v. Rodriguez, 525 F.3d 85, 99 (1st Cir. 2008) (holding, under plain error
review, that testimony about defendant’s fugitive status provided helpful context
to the jury and clarified reasons for a search and was not unduly prejudicial
under Rule 403).
But second, and more important, the testimony came on re-direct
examination and rebutted the defense’s questioning on cross-examination. The
defense elicited from Avi information about the military operation and the fact
that Israeli military clashes with civilians in Jenin had resulted in civilian
Government presented a video showing Palestinian children pretending to be suicide bombers
at a kindergarten ceremony. The defendants argue that the video was inadmissible under both
Rule 403 and Rule 703, but we find that in addition to explaining Levitt’s testimony, the video
provided rebuttal evidence. The defense spent a good deal of time at trial discussing HLF’s
charitable support of schools and students by providing backpacks and school supplies. Dr.
Levitt testified that school supplies help build goodwill and that the Hamas schools also focus
on political ideology. His testimony, along with the video, provided a connection between
Hamas and school children and rebutted the defense’s efforts. We disagree with the
defendants that the probative value of the video in assisting the jury to understand Dr. Levitt’s
testimony was substantially outweighed by its prejudicial effect. See FED. R. EVID. 403, 703.
48
No. 09-10560
casualties. The defense emphasized that the USAID group provided
humanitarian aid to the Palestinians as a result of those clashes. The defense
thereby painted the Israelis as unprovoked aggressors, or, at best, the more
culpable party in the dispute. On re-direct, therefore, it was permissible for Avi
to explain that the military operation was a result of the hotel bombing and the
Israeli government’s decision to target the terrorist cells responsible for the
bombing. Any prejudicial effect of this testimony was slight in comparison with
the probative goal of rebutting the cross-examination. See United States v.
Walker, 613 F.2d 1349, 1353 n.5 (5th Cir. 1980) (“Because the prejudicial impact
of the evidence elicited by the government was slight, the probative value of the
re-direct examination in rebutting a possible defense clearly outweighs any
prejudicial impact. Accordingly, the testimony was properly admitted.”); see also
United States v. Touloumis, 771 F.2d 235, 241 (7th Cir. 1985) (“[A] party cannot
be permitted on the one hand to introduce evidence that appears favorable to his
argument and then complain, after the circumstances are fully developed,
because the evidence becomes detrimental to his cause.”).
Other evidence challenged by the defendants also came on re-direct
examination. For example, Shorbagi testified that he did not want to return to
Hamas-controlled Gaza because he feared being killed. The defendants argue
that this testimony was prejudicial, but the defense brought out on cross-
examination the fact that the Government had promised to help Shorbagi
remain in the United States after he is released from prison. Shorbagi’s fear
therefore helped explain his testimony about remaining in this country.
Still other evidence rebutted the defendants’ defense that HLF and the
zakat committees were charitable organizations independent of Hamas.
Evidence which tends to rebut a defendant’s claim of innocent action is unlikely
to be unduly prejudicial. See United States v. Duncan, 919 F.2d 981, 987–88 (5th
Cir. 1990) (holding in prosecution for mail fraud that testimony of forged
49
No. 09-10560
signature on disability statement, which tended to rebut the claim that
defendants had innocently filed insurance claims for genuine medical reasons,
was not unduly prejudicial). Here, we agree with the Government that evidence
seized from HLF and the zakat committees, including images of violence and
videos glorifying Hamas and depicting Hamas leaders, was probative of the
motive or intent of the committees and HLF to support Hamas. See United
States v. Hammoud, 381 F.3d 316, 342 (4th Cir. 2004) (holding that videotapes
found in defendant’s apartment depicting violence and anti-American sentiment
were not unduly prejudicial under Rule 403 in a prosecution for providing
material support for a terrorist organization because they were probative of
defendant’s knowledge, “provided evidence of [his] motive in raising funds for
Hizballah[,] and tended to contradict [his] claim that he sympathized only with
the humanitarian goals of the organization”), overruled on other grounds by
Hammoud v. United States, 543 U.S. 1097 (2005).
The defendants make much of the fact that images seized from HLF
computers were not downloaded but rather were found in temporary files that
are automatically saved by the computer when a web page is browsed. This
objection goes to the weight of the evidence rather than its admissibility. Cf.
United States v. Garcia Abrego, 141 F.3d 142, 176 (5th Cir. 1998) (objection
under Rule 403 that evidence of violent acts committed in furtherance of
conspiracy consisted of mere out-of-court statements rather than direct evidence
went to the weight of the evidence and not admissibility). The presence of
images on the computer indicates that someone at HLF browsed a page where
the images were located. If the images were pro-Hamas or approved of violence,
one logical inference is that HLF, which was a separate defendant, had the same
view.10 The same is true of Hamas-related materials found in the zakat
10
The defendants also contend that the videotape with a fragment at the beginning
showing demonstrators burning American flags was prejudicial because it showed merely that
50
No. 09-10560
committees. The presence of the material at the committees suggests a
connection between the committees and Hamas and permits an inference that
the zakat committees supported Hamas.11
The defendants rely on United States v. Al-Moayad, 545 F.3d 139 (2d Cir.
2008), for their argument that the evidence of Hamas violence was inadmissible
here. In Al-Moayad, the Second Circuit held that the district court improperly
admitted testimony from a victim of a Hamas bomb attack on a bus, as well as
images of the aftermath of the attack, where the defendants were charged with
conspiracy and attempting to provide material support to Hamas but were not
charged with planning or carrying out that attack. Id. at 160–61. The
Government in that case argued that the evidence was relevant to show the
defendants’ knowledge that Hamas engaged in terrorist activity. Id. at 160.
The court held, however, that such probative value was diminished because the
defendants never denied such knowledge and they had offered to stipulate to
that fact. Id. Therefore, the evidence served very little probative purpose. The
instant case is different from Al-Moayad because evidence of Hamas violence
found on the premises of HLF or in the zakat committees tended to rebut the
defendants’ denial that they supported Hamas and that Hamas controlled the
committees. Additionally, other evidence of violence provided meaningful
a videographer hired by HLF recorded over a tape of the demonstration. We are not
persuaded. The defendants point to no evidence establishing that an unnamed videographer
was responsible for the tape’s contents rather than HLF. The testimony at trial showed that
the tape was presented exactly as it was found among HLF records and documents, including
an attached note that requested two copies of the video and that stated, “There is a
demonstration at the beginning. I don’t want it.” The jury could determine how much weight
the note and the video fragment should receive.
11
Similarly, the defendants complain about questions eliciting the fact that some of the
orphans and families that HLF supported had separately received support from Iraq or
Saddam Hussein. This information was contained within HLF’s own records, however. It was
also consistent with the Government’s theory that HLF’s support was intended to aid the
families of martyrs.
51
No. 09-10560
context and explanation. To the extent it demonstrated the defendants’
knowledge of Hamas and support for it, or Hamas’s connection to the zakat
committees, the evidence had probative value and was not unduly prejudicial.
From our review of the entire record, we are convinced that the district
court did not clearly abuse its discretion under Rule 403 by refusing to exclude
the challenged evidence. Because this was a case about supporting terrorists,
it is inescapable, we believe, that there would be some evidence about violence
and terrorist activity. It cannot be denied that the evidence at issue was
unfavorable to the defendants, but we cannot conclude that it was unduly
prejudicial. See, e.g., Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 427
(5th Cir. 2006) (“‘Unfair prejudice’ as used in rule 403 is not to be equated with
testimony that is merely adverse to the opposing party.”). “Here was no parade
of horrors” under all the circumstances. United States v. McRae, 593 F.2d 700,
707 (5th Cir. 1979). Given the significant deference this court shows to the
district court in Rule 403 matters, the district court’s rulings will not be
disturbed. See Fields, 483 F.3d at 354 (“The governing law and our limited
standard of review bear emphasis.”).
D. Expert and lay opinion testimony
Next, the defendants argue that five witnesses were allowed to provide
either improper lay opinion or improper expert opinion testimony under Rules
701 and 702 of the Federal Rules of Evidence. We review the district court’s
rulings on the admission of lay and expert testimony for an abuse of discretion.
United States v. Griffin, 324 F.3d 330, 347 (5th Cir. 2003).
1. John McBrien
John McBrien was the associate director of OFAC. He testified about the
Treasury Department’s failure to designate the zakat committees as terrorist
organizations. He also opined about whether one may donate to the committees
if they are not designated. The defendants argue that McBrien was not noticed
52
No. 09-10560
as an expert witness, that his testimony was improper lay opinion, and that he
gave an improper legal conclusion. We agree with the defendants.
“Under FED. R. EVID. 701, a lay opinion must be based on personal
perception, must be one that a normal person would form from those
perceptions, and must be helpful to the jury.” United States v. Riddle, 103 F.3d
423, 428 (5th Cir. 1997) (internal quotation marks and citation omitted). A lay
witness may not give an opinion that requires “scientific, technical, or other
specialized knowledge within the scope of Rule 702.” FED. R. EVID. 701. It is
also generally prohibited for a lay witness to interpret statutes and to give legal
opinions. See Griffin, 324 F.3d at 347–48. In Riddle, we held that it was
improper for a lay witness in a bank fraud prosecution to explain provisions of
the banking regulations, to express his opinion on “prudent” banking practices,
and to “draw on his specialized knowledge as a bank examiner” in giving his
opinions about the defendant’s actions. Riddle, 103 F.3d at 428–29; see also Huff
v. United States, 273 F.2d 56, 61 (5th Cir. 1959) (where issue was whether
jewelry was exempt from duty, a customs inspector was improperly allowed to
testify about his own construction of the customs laws, rules, and regulations,
and to opine that the jewelry found in defendant’s possession was commercial in
nature rather than a personal effect).
In the instant case, McBrien explained that the Treasury Department
typically does not designate every sub-group or component of a designated
terrorist organization because it focuses its limited resources on designating the
key parts of the organization. He also read from Treasury regulations. He then
testified that a person donating money must ensure that the donation is not
going to a sub-entity or front for the designated organization. He answered a
hypothetical question about a specific group with Hamas ties, known as the al-
Salah Society, explaining that if one lacked knowledge about the Hamas
53
No. 09-10560
connection, a donation to al-Salah would not be illegal but that if one did have
knowledge, donating to the group would be prohibited.
McBrien’s testimony was helpful to the jury and was relevant because it
addressed the defendants’ complaints that none of the zakat committees to
which HLF provided funds was designated as a terrorist organization. But
McBrien’s testimony about the Treasury Department’s practice in designating
or not designating sub-groups of terrorist organizations is not within the realm
of an ordinary lay witness. The Government argues that McBrien’s testimony
was based on his personal knowledge and served to rebut the defense theory that
because the zakat committees were not on the designation list they were not
controlled by Hamas. McBrien’s opinions and explanations were the product of
specialized knowledge, however. It is true that lay witnesses may sometimes
give opinions that require specialized knowledge, but the witness must draw
“straightforward conclusions from observations informed by his own experience.”
Riddle, 103 F.3d at 429. Rather than make straightforward conclusions from his
observations, McBrien explained the procedures of OFAC.
We are also troubled by McBrien’s testimony about the “test” for whether
a donation may be made to an entity that is not on the designation list. McBrien
explained, in part, that the “basic test is, is the entity or the individual owned
or controlled by or acting for or on behalf of the designated entity or the
designated organization. . . . [I]t means are you acting as an intermediary for
them, are you acting as their front organization, are you their straw man, are
you their go between. ” This testimony stated a legal test and was improper
under our precedent. See Griffin, 324 F.3d at 347–48 (improper to allow
Government witness to read from state statutes and to give her own
interpretation of the law); Riddle, 103 F.3d at 428–29 (explanation of banking
regulations held to be improper lay testimony).
54
No. 09-10560
Nevertheless, any error that occurred in the admission of McBrien’s
testimony was harmless because the testimony was cumulative to other
testimony before the jury. See Griffin, 324 F.3d at 348. Dr. Levitt, a
Government expert witness, also testified that the Treasury Department does
not include every component of a terrorist organization on the designation list
because doing so would be impossible. Levitt explained that the omission of a
sub-group from the designation list does not mean that the group is not part of
Hamas or that American citizens may donate money to the sub-group. Levitt
further explained that the Treasury Department does not provide so-called
“white lists” of approved organizations. Thus, McBrien’s testimony was
cumulative to Levitt’s testimony. See id. (“Where objected to testimony is
cumulative of other testimony that has not been objected to, the error that
occurred is harmless.”).12
Furthermore, although McBrien gave an improper legal opinion and
provided testimony based on specialized knowledge, he did not express any
opinions as to the defendants’ specific conduct in the case. This is unlike other
instances where we have found error in the admission of improper expert
testimony. See, e.g., Riddle, 103 F.3d at 429 (lay witness gave improper opinion
that bank operated “imprudently,” which required witness’s expert
understanding of the banking industry); Huff, 273 F.2d at 61 (lay witness opined
on specific legal nature of the goods at issue). We think that fact plus the
cumulative nature of the evidence militates toward the harmless error
conclusion. We therefore hold that McBrien’s testimony was harmless and was
not reversible error.
2. FBI Agents Lara Burns and Robert Miranda
12
The defendants objected at trial only to the question about whether the fact that a
zakat committee was not designated as a terrorist organization meant that American citizens
could donate to the committee; however, they have not argued on appeal that Levitt, who was
an expert witness, could not answer the question.
55
No. 09-10560
The defendants argue that FBI Agents Lara Burns and Robert Miranda,
who were not noticed as expert witnesses, testified beyond their capacity as lay
witnesses and gave improper expert opinions. The defendants object to specific
testimony from Agent Burns that: (1) defined the term “Islamist” as used by
Baker in the recording of the Philadelphia meeting; (2) explained why it was not
relevant for her investigation whether the defendants received a salary from
HLF, and why it was necessary to examine HLF’s transactions before Hamas
was designated as a terrorist organization; (3) connected Hamas to a flag
burning demonstration seen in a videotape seized from HLF records; (4)
identified the speaker on an audio tape as a leader in the Muslim Brotherhood;
(5) explained the difference between “inside” and “outside” the Palestinian
territories as used in some exhibits; (6) gave her understanding of why
participants in the Philadelphia meeting continued to operate in America; and
(6) identified various individuals as leaders of the zakat committees. The
defendants further complain about Agent Miranda’s testimony that (1) explained
his understanding of recorded telephone calls between Baker and Baker’s
brother, and (2) stated that Baker’s brother used a Hamas name. The
defendants contend that the above testimony was not based on the witnesses’
perception, was not helpful to the jury, and required specialized knowledge. We
conclude that no reversible error occurred.
We agree that some of the facts presented by the agents would not be
known to an average lay person. The district court did not err by admitting the
testimony, however, because the agents’ opinions were limited to their personal
perceptions from their investigation of this case. See United States v. McMillan,
600 F.3d 434, 456 (5th Cir. 2010). By explaining the meaning of terms as used
in the conversations and documents, as well as the relationships between the
people they were investigating, the agents provided the jury with relevant
factual information about the investigation. See id. (lay witnesses who
56
No. 09-10560
investigated an HMO’s financial health were permitted to testify about
accounting rules, define certain terms, and report impressions of HMO’s
accounting records because testimony “provided factual information about the
circumstances of the case” and concerned the witnesses’ investigation and
“perceptions in the case”).
Testimony need not be excluded as improper lay opinion, even if some
specialized knowledge on the part of the agents was required, if it was based on
first-hand observations in a specific investigation. For example, in United States
v. Miranda, 248 F.3d 434, 441 (5th Cir. 2001), we held that an FBI agent could
testify under Rule 701 about the meaning and use of certain code words in the
drug trade. We emphasized that the agent’s “extensive participation in the
investigation of this conspiracy” allowed the agent to “form opinions” about the
code words “based on his personal perceptions.” Id. (emphasis added).
Similarly, in United States v. Rollins, 544 F.3d 820, 831–32 (7th Cir. 2008), the
Seventh Circuit found no error in a law enforcement officer’s “impression”
testimony about recorded telephone calls where it was “based on his first-hand
perception of the intercepted phone calls . . . as well as his personal, extensive
experience with this particular drug investigation,” rather than on his law
enforcement experience as a whole. The officer was permitted to testify about
his familiarity with the voices in the calls and about the meaning that the callers
gave to certain words and terms. Id.; see also United States v. Jackson, 549 F.3d
963, 975 (5th Cir. 2008) (a witness may testify “as a lay witness drawing from
his ‘past experiences formed from firsthand observation’ as an investigative
agent”).
Agents Burns and Miranda were extensively involved in the investigation
of HLF, and we conclude that their testimony was either descriptive or based on
their participation in, and understanding of, the events in this case. See United
States v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008) (a law enforcement officer
57
No. 09-10560
does not provide expert testimony if it is “merely descriptive,” or if it is based on
“common sense or the officer’s past experience formed from firsthand
observation”). For example, Agent Burns testified that her identification of
certain individuals as leaders in the zakat committees was based on other
records reviewed in the investigation. Agent Miranda interpreted a phone call
between the Baker brothers as referring to Hamas leader Khalid Mishal because
of other evidence present in the investigation.13 The opinions were not based on
the agents’ training and experience as law enforcement officers in general. See
Rollins, 544 F.3d at 831–32.
The defendants also overstate the effect of the agents’ testimony in several
instances. For example, they complain that Agent Burns “opined that the flag-
burning demonstration” seen in the video found among HLF’s records “involved
Hamas.” Actually, Agent Burns testified that the headbands worn by the
demonstrators in the video had also been present in other videos that were
associated with Hamas. To the extent that this was an improper expert opinion
on the headbands, which we doubt, it was cumulative of other testimony and was
therefore harmless. See Griffin, 324 F.3d at 348; cf. United States v. Hall, 500
F.3d 439, 444 (5th Cir. 2007) (erroneous introduction of cumulative evidence was
harmless error). Dr. Levitt and Avi both testified that the headbands were
associated with Hamas. Similarly, Agent Burns’ explanation of the terms
“inside” and “outside” the Palestinian territories was cumulative of similar
testimony from Dr. Levitt. We conclude that the district court did not abuse its
discretion by admitting the testimony of Agents Burns and Miranda.
13
In the call at issue, Baker’s brother referred to someone becoming “sick” shortly before
the call, and defendant Baker described subsequently speaking to that individual’s father.
Miranda testified that at the time of the call there had been an assassination attempt on
Mishal, and the evidence showed that Baker had then phoned Mishal’s father. Miranda’s
interpretation of the call as referring to Mishal was therefore a straightforward conclusion
based on his observations in the case. See Riddle, 103 F.3d at 429.
58
No. 09-10560
3. Matthew Levitt
As noted above, Levitt was the Government’s expert witness on Hamas,
and he testified twice at trial. First, he gave an overview of the rise of Hamas
and the role that Hamas’s social wing played in the accomplishment of its goals.
That testimony has not been challenged. Second, the Government re-called
Levitt to provide testimony about evidence that had already been admitted
through other witnesses. The evidence had shown telephone calls and financial
transactions between the defendants and Hamas leaders between 1989 and
1993. It had also shown the presence of the defendants’ names in the telephone
book of Hamas leader Marzook. Levitt was re-called to testify about the relative
inaccessibility of the Hamas leadership to the general public, which highlighted
the significance of this evidence.
For example, Levitt testified that the presence of the defendants’ names
in Marzook’s book was “significant” because “[t]his is personal and direct
evidence of a relationship.” He also testified that someone calling the public
number for Hamas was “not likely to get the senior leaders of an organization,
any organization, Hamas or some other organization.” He further gave the
opinion that “[t]he fact that there are connections with so many Hamas leaders
is not coincidental, cannot be coincidental.”
The defendants argue that Levitt’s testimony about the significance of the
contacts between them and Hamas prior to Hamas’s designation as a terrorist
organization was improper expert testimony under Rule 702 because the jury
was capable of determining for itself what inferences to draw from the evidence.
The Government argues that Levitt’s testimony was necessary in order to
prevent the jury from assuming that Hamas leaders were available to anyone,
or that those leaders engaged in a wide range of arms-length business deals with
third-parties. We find no reversible error.
59
No. 09-10560
First, the evidence refuted specific testimony elicited by the defense on
cross-examination. During its case in chief, the Government introduced evidence
that in 1995, following the detention of Hamas leader Marzook by U.S.
authorities, Hamas had sent an arguably ominous letter to United States
Senator Orrin Hatch. On cross-examination of the senator’s aide, counsel for El-
Mezain pointed out that the letter contained a public address, telephone number,
and facsimile number for Hamas. Counsel then asked the witness to agree that
“if a person wanted to contact Hamas they could call that phone number.”
Levitt’s testimony rebutted the defense suggestion that Hamas leaders could be
readily contacted. Second, even assuming arguendo that Levitt’s testimony was
unnecessary, it likely did not add to anything that the jury already knew. It
seems to us that a reasonable juror was more likely than not able to assume that
Hamas leaders would tend to limit their contacts and transactions to trusted
persons who supported Hamas. Therefore, even if an error occurred, which we
do not find, we are convinced that the challenged testimony did not affect the
verdict. See United States v. Lowery, 135 F.3d 957, 959 (5th Cir. 1998) (“A
nonconstitutional trial error is harmless unless it ‘had substantial and injurious
effect or influence in determining the jury’s verdict.’”) (quoting Kotteakos v.
United States, 328 U.S. 750, 776 (1946)).
4. Steven Simon
Steven Simon was a former staff member of the National Security Council
under President Clinton, but he was not noticed as an expert and did not testify
under Rule 702. The defendants challenge testimony he gave about the dangers
posed by Hamas violence to the United States’ strategic interests in the Middle
East and to American support of the Oslo peace accords. Simon testified that the
violence interferes with the peace process and affects the United States’ vital
interests in maintaining stability in the region and easing Arab resentment
toward America. At one point, when asked why the United States should care
60
No. 09-10560
about Hamas and other terrorist organizations, Simon testified that “to the
extent that the United States can remove one cause of resentment against
America, we reduce the threat against the United States correspondingly. It is
hard to do, but it is very important work.”
The defendants argue that Simon’s opinion that Hamas violence threatens
American interests was irrelevant and improperly appealed to the jurors’ fears
that support for Hamas could lead to more 9/11-style attacks on the United
States. The Government argues that Simon’s testimony provided relevant
context for the case and that it was not unfairly prejudicial for Simon to explain
that one reason for U.S. support of the peace process is to remove a source of
Arab resentment and thereby reduce the threat of future violence.
We agree with the defendants that Simon’s testimony was not relevant
and should have been excluded. The Government was required to prove that the
defendants provided material support to Hamas, and it therefore had to show a
connection between Hamas and the defendants. The reason why the American
Government wants peace in the Middle East, and whether terrorist violence
disrupts the peace process, does little to establish that connection. Nevertheless,
any error was harmless. Simon’s direct testimony was not extensive, comprising
only fifteen pages out of several thousand pages of the trial transcript. In a trial
lasting approximately six weeks, Simon’s momentary testimony was fleeting.
The testimony also provided the jury with the unremarkable lesson that the
United States has a vital interest in Middle Eastern oil, and therefore it is in the
U.S. interests to avoid Arab resentment and to keep the region free from violence
and instability. The defendants’ argument that the testimony was a blatant
appeal to jurors’ fears is overstated when the testimony is read in full.
Moreover, much of Simon’s testimony is cumulative of other evidence. The
Middle Eastern peace process and the Oslo Accords, the involvement of
President Clinton, the opposition by Hamas, and the threat to the American
61
No. 09-10560
economy, foreign policy, and national security, were all evident from other
testimonial and documentary evidence, such as the testimony of Levitt and
Presidential Executive Order Number 12947. To the extent that admission of
Simon’s testimony was improper under Rule 701, it was therefore harmless. See,
e.g., Griffin, 324 F.3d at 348.
E. Letter rogatory
The defendants next challenge the district court’s failure to grant their
request for a letter rogatory to the government of Israel. A federal court may
issue a letter rogatory, also known as a letter of request, to a court in a foreign
country seeking assistance in the production of evidence located in the foreign
country. See 28 U.S.C. 1781(b)(2); see also United States v. Reagan, 453 F.2d
165, 171–72 (6th Cir. 1971). The letter rogatory process “has been described as
‘complicated, dilatory, and expensive.’” United States v. Rosen, 240 F.R.D. 204,
215 (E.D. Va. 2007) (quoting Societe Nationale Industrielle Aerospatiale v. U.S.
Dist. Court, 482 U.S. 522, 531 (1987)). The decision to issue a letter rogatory is
therefore entrusted to the sound discretion of the district court, and we review
such decisions only for an abuse of discretion. United States v. Liner, 435 F.3d
920, 924 (8th Cir. 2006).
The defendants sought a letter rogatory to the appropriate Israeli
authority five months before trial in order to review approximately 2000 boxes
of material seized by the Israeli military from the zakat committees. The
defendants sought this access because they believed that Avi had cherry-picked
pro-Hamas evidence from the seized material to form his opinions about the
committees. They therefore wanted to search for exculpatory evidence. The
district court apparently overlooked the pendency of the request and never
formally ruled on the defendants’ motion. During the course of trial, however,
the district court indicated that authorizing any further inquiry into the seized
62
No. 09-10560
materials would be a fishing expedition. We do not think the court’s assessment
was an abuse of discretion.
The issuance of a letter rogatory is a discovery issue. We will not order a
new trial based on alleged discovery violations unless the defendant shows that
a denial of access to evidence was prejudicial to his substantial rights. United
States v. Dukes, 139 F.3d 469, 476 (5th Cir. 1998). This requires “a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different. . . . [A] reasonable probability is shown
where the nondisclosure could reasonably be taken to put the whole case in such
a different light as to undermine confidence in the jury verdict.” United States
v. Webster, 162 F.3d 308, 336 (5th Cir. 1998) (internal quotation marks and
citation omitted).
The defendants believe that non-Hamas materials, such as documents and
posters related to the Fatah party or pictures of Yasser Arafat, may have been
present in the zakat committees, and if so, the material would have undermined
Avi’s opinion that the committees were controlled by Hamas. In a footnote, the
defendants suggest that such material existed because defense witness Ed
Abbington testified that he had visited zakat committees in the West Bank and
had seen a mixture of Hamas and Fatah posters. The defendants’ argument is
unpersuasive.
The record shows that the Government turned over to the defense twenty
volumes of material that Avi used to form his expert opinions. In testimony that
the district court credited, Avi testified that he produced all the seized material
that was relevant to the zakat committees, regardless whether or not it was
favorable to the Government. The defendants’ hope that combing through all
2000 boxes of the seized material might have produced exculpatory evidence is
purely speculative. See Liner, 435 F.3d at 924 (affirming denial of letter
rogatory to depose a witness where defendant offered no evidence that witness’s
63
No. 09-10560
testimony would be material); see also United States v. Marshall, 526 F.2d 1349,
1355 (9th Cir. 1975) (holding that district court did not abuse its discretion in
denying massive discovery request by defendant claiming prosecutorial
misconduct where claimed infringement of constitutional rights was tenuous and
speculative).
The defendants’ reliance on Abbington’s testimony does not alter the
result. Abbington provided no details about the Fatah and Arafat pictures he
had purportedly seen. For example, he was not asked when he allegedly saw
these pro-Fatah materials or where. He testified that he visited various zakat
committees, but he was not asked which zakat committees he was visiting when
he allegedly saw this material. Because there is also no indication in the record
that the Israeli military had actually seized such material, it is also not clear
that the letter rogatory would have led to evidence favorable to the defense. See
8 CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 2005.1
at 70 (3d ed. 2010) (district court should issue letters rogatory “whenever it is
determined on a case-by-case basis that their use will facilitate discovery”). We
therefore cannot say that there is a reasonable probability that disclosure of the
material would have cast the case in a different light, thereby undermining
confidence in the verdict. See Webster, 162 F.3d at 336; see also Rosen, 240
F.R.D. at 215 (letter rogatory denied where testimony sought was not necessary
to ensure a fair trial).
Given the voluminous amount of material that the Israelis seized, Avi’s
testimony that he produced all material that was relevant to the committees,
and the absence of proof that pro-Fatah materials were present and seized from
the specific zakat committees that the Government alleged were controlled by
Hamas, the district court did not abuse its discretion by failing to issue a letter
rogatory to the Israeli government five months before trial on the basis that
doing so would enable only a fishing expedition.
64
No. 09-10560
F. Production of the defendants’ intercepted statements
The defendants next contend that the district court erred by refusing to
compel the Government pursuant to the Rules of Criminal Procedure to disclose
the defendants’ own intercepted statements to them. This issue implicates the
Government’s privilege in a criminal case to prevent discovery of classified
information in order to protect national security. The defendants contend that
the Government failed to invoke properly its privilege to withhold classified
information and also failed to show that national security would be jeopardized
by disclosure of their own statements. We review the district court’s alleged
discovery error for an abuse of discretion. United States v. Garcia, 567 F.3d 721,
734 (5th Cir. 2009).
We start by reviewing additional background information. During the
course of its investigation in this case, the Government intercepted tens of
thousands of telephone calls and facsimile transmissions through 24-hour
surveillance of the defendants, as authorized under FISA, 50 U.S.C. § 1801, et
seq. Because most of the calls were in Arabic, FBI translators identified which
calls were pertinent to the intelligence investigation and prepared approximately
9600 English language summaries, as well as a smaller number of verbatim
transcripts. Calls that were deemed not pertinent were neither translated nor
summarized. Initially, all of the intercepted calls were classified by the
Government.
Subsequently, the Government declassified the English summaries and
the entire contents of intercepts for four of the eight FISA subjects. This
declassified material was produced to the defense. Defense counsel, but not the
defendants themselves, were also provided access to the remaining classified
intercepts because counsel had the proper security clearances. Because the
classified materials were in Arabic, however, defense counsel could not
65
No. 09-10560
understand them, nor could they discuss the material with their clients because
the defendants did not have a security clearance.
The defendants moved to declassify the remaining FISA intercepts, or, in
the alternative, for production of their own individual statements, so that
counsel and their clients could review them together. The Government opposed
the motion on the ground that the intercepts could not be declassified wholesale
because the materials included information relevant to national security and the
enormous volume of it made review of all the material impractical. The
Government offered, however, to seek declassification of any specific FISA
intercepts identified by counsel. The Government suggested that counsel could
review with their clients the declassified summaries and then identify which
calls they wanted to hear or time periods that might contain other relevant calls.
The Government would then seek a declassification review of the identified calls.
The district court held that the Government’s proposal was consistent with
CIPA (the Classified Information Procedures Act, 18 U.S.C. app. 3 §§ 1–16), and
refused to order disclosure of all the classified FISA intercepts. It ruled instead
that counsel could seek declassification of specific intercepts. On appeal, the
defendants contend that the district court erred because the plain language of
the Rules of Criminal Procedure required personal disclosure of their own
intercepted statements.
Discovery in a criminal case is governed by Rule 16 of the Federal Rules
of Criminal Procedure, which specifies the type of information subject to
disclosure by the Government. See FED. R. CRIM. P. 16 (a)(1). The rule generally
requires the Government to disclose “to the defendant . . . any relevant written
or recorded statement by the defendant” that is within the Government’s
possession. FED. R. CRIM. P. 16 (a)(1)(B)(i). The rule also grants the district
court the power, however, to restrict or deny discovery in a criminal case for
“good cause.” The advisory committee notes indicate that “good cause” includes
66
No. 09-10560
“the protection of information vital to the national security.” FED. R. CRIM. P.
16(d)(1) & advisory committee’s note on 1966 amendments.
Congress passed CIPA to provide further guidance and protect against the
unauthorized disclosure of classified information in the custody of the federal
courts. In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 93, 121
(2d Cir. 2008). CIPA’s purpose was to set forth procedures designed to “protect[]
and restrict[] the discovery of classified information in a way that does not
impair the defendant’s right to a fair trial.” United States v. O’Hara, 301 F.3d
563, 568 (7th Cir. 2002). Pursuant to Section 4 of CIPA, entitled “Discovery of
classified information by defendants,” a district court may authorize the
Government “to delete specified items of classified information from documents
to be made available to the defendant through discovery under the Federal Rules
of Criminal Procedure, to substitute a summary of the information for such
classified documents, or to substitute a statement admitting relevant facts that
the classified information would tend to prove.”14 18 U.S.C. app. 3 § 4.
CIPA is procedural and neither creates nor limits a defendant’s right of
discovery. See United States v. Mejia, 448 F.3d 436, 455 (D.C. Cir. 2006); see also
United States v. Varca, 896 F.2d 900, 905 (5th Cir. 1990) (CIPA does not expand
traditional rules of criminal discovery). Instead, it clarifies the district court’s
existing power to restrict or deny discovery under the Federal Rules of Criminal
Procedure. Mejia, 448 F.3d at 455; United States v. Aref, 533 F.3d 72, 78 (2d Cir.
2008). Both CIPA and Rule 16 leave “the precise conditions under which the
defense may obtain access to discoverable information to the informed discretion
of the district court.” In re Terrorist Bombings, 552 F.3d at 122.
14
“Classified information” is defined in relevant part as “any information or material
that has been determined by the United States Government pursuant to an Executive order,
statute, or regulation, to require protection against unauthorized disclosure for reasons of
national security.” 18 U.S.C. app. 3 § 1.
67
No. 09-10560
We have not previously addressed the scope of the Government’s privilege
to prevent discovery of classified information under CIPA. Our sister circuits,
guided generally by two Supreme Court decisions, have addressed the issue,
however, and have adopted similar tests for application of the Government’s
privilege. See, e.g., Aref, 533 F.3d at 80; United States v. Yunis, 867 F.2d 617,
623–24 (D.C. Cir. 1989). The first Supreme Court decision that has guided our
sister circuits is United States v. Reynolds, 345 U.S. 1 (1953), where plaintiffs in
a civil case against the United States sought discovery of an Air Force
investigative report about the crash of a bomber. The Court there recognized a
governmental privilege to protect military and state secrets, and it held that a
plaintiff could be denied evidence if “there is a reasonable danger that
compulsion of the evidence will expose military matters which, in the interest
of national security, should not be divulged.” Id. at 10.
The second case that has influenced our sister circuits’ examination of the
Government’s classified information privilege is Roviaro v. United States, 353
U.S. 53 (1957), a criminal case involving the privilege to withhold a confidential
informant’s name. In that case, the Court recognized the Government’s right to
withhold the identity of an informer who provides police officers with
information about violations of law, id. at 59, but it also held that “the privilege
must give way” when the information “is relevant and helpful to the defense of
an accused, or is essential to a fair determination of a cause.” Id. at 60–61.
In Aref, the Second Circuit applied Reynolds and Roviaro in the context of
the Government’s withholding of discovery of classified information in a CIPA
case. See Aref, 533 F.3d at 79–80. The court believed that the classified
information privilege contemplated by CIPA is analogous to the common law
state-secrets privilege recognized in Reynolds. It also adopted the test from
Roviaro as to when the privilege may yield to a defendant’s need for the
information. The court held that a governmental privilege claim in a CIPA case,
68
No. 09-10560
like the state-secrets privilege, may prevent disclosure of otherwise discoverable
information when (1) there is a reasonable danger that disclosure would expose
matters that otherwise should not be disclosed in the interest of national
security, and (2) the privilege claim has been lodged by an appropriate
governmental agency head. Id. at 80. The court also held that the privilege
nevertheless may yield when the information is helpful or material to the
defense. Id.Similarly, in Yunis, the District of Columbia Circuit also assessed
discovery orders in a CIPA case. The court there recognized the similarity
between the “sensitive considerations underl[ying] the classified information
privilege” and the “informant’s privilege identified in Roviaro.” Yunis, 867 F.2d
at 622–23. The court concluded, consistent with Roviaro, that when the
Government invokes a classified information privilege, the district court must
determine (1) whether the defendant has shown that the information sought is
relevant, which it considered to be a “low hurdle,” and (2) whether the
Government’s claim of privilege is “at least a colorable one.” Id. at 623. The
court further recognized that the defendant’s relevance showing could overcome
the Government’s claim of privilege when the information sought is helpful to
the defense, but the court required more than “a mere showing of theoretical
relevance.” Id.; see also United States v. Smith, 780 F.2d 1102, 1110 (4th Cir.
1985) (en banc) (equating classified material sought by the defendant with
information about informers in Roviaro, and holding that the district court may
order disclosure only when the information is necessary to the defense and is
neither cumulative nor speculative).
Against this backdrop, we consider the defendants’ claim in this case. As
an initial matter, the defendants contend that the Government did not properly
invoke its privilege to withhold classified information because a privilege claim
was not lodged by the responsible agency head, i.e. the Attorney General. In
69
No. 09-10560
support of this proposition, the defendants rely primarily on the Second Circuit’s
decision in Aref, where the court held that the privilege to withhold classified
information could be asserted only “‘by the head of the department which has
control over the matter, after actual personal consideration by that officer.’”
Aref, 533 F.3d at 80 (quoting Reynolds, 345 U.S. at 8). We do not believe that
the absence of the agency head’s imprimatur in this case is fatal, however, for
several reasons.
First, Aref relied on the Supreme Court’s civil decision in Reynolds even
though Aref was a criminal case. The Supreme Court in Reynolds appeared to
distinguish between the rationale for the Government’s evidentiary privilege in
criminal and civil cases. See Reynolds, 345 U.S. at 12. We therefore join the
Fourth Circuit in questioning whether Aref properly adopted and applied
Reynolds in a criminal context. See United States v. Rosen, 557 F.3d 192, 198
(4th Cir. 2009).
Second, as the Fourth Circuit observed, there is no equivalent requirement
in CIPA that the governmental privilege must be initiated by an agency head.
See id. CIPA imposes upon district courts a mandatory duty to prevent the
disclosure of any classified materials by issuing a protective order “[u]pon motion
of the United States.” 18 U.S.C. app. 3 § 3 (“Upon motion of the United States,
the court shall issue an order to protect against the disclosure of any classified
information disclosed by the United States to any defendant in any criminal case
. . . .”) (emphasis added); see In re Terrorist Bombings, 552 F.3d at 121. Some
CIPA provisions do require the Attorney General’s participation. See, e.g., 18
U.S.C. app. 3 § 6(a) (“Any hearing held pursuant to this subsection (or any
portion of such hearing specified in the request of the Attorney General) shall be
held in camera if the Attorney General certifies to the court in such petition that
a public proceeding may result in the disclosure of classified information.”); 18
U.S.C. app. 3 § 6(e)(1) (“Whenever the court denies a motion by the United
70
No. 09-10560
States that it issue an order under subsection (c) and the United States files
with the court an affidavit of the Attorney General objecting to disclosure of the
classified information at issue, the court shall order that the defendant not
disclose or cause the disclosure of such information.”). However, the CIPA
discovery provision does not similarly require the Attorney General to act. See
18 U.S.C. app. 3 § 4 (providing only that “upon a sufficient showing” the district
court may authorize “the United States” to withhold classified information). The
absence of a requirement in CIPA that the Attorney General assert the privilege
suggests that the district court may order withholding of classified information
from discovery without an explicit claim from the agency head as long as the
United States otherwise makes a sufficient showing for the privilege. See
Russello v. United States, 464 U.S. 16, 23 (1983) (“[W]here Congress includes
particular language in one section of a statute but omits it in another section of
the same Act, it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.”) (alteration in original)
(internal quotation marks and citation omitted).
Finally, the Second Circuit held in Aref that a “failure to comply with [the]
formality” of an agency head’s assertion of the privilege may be excused when
there would be no benefit in remanding solely “for the purpose of having the
department head agree that disclosure of the classified information would pose
a risk to national security.” Aref, 533 F.3d at 80. Even assuming arguendo that
the privilege must be asserted by the agency head, we believe that a remand
would be of no benefit here because we see no reason to think the Attorney
General would disagree with the decision to assert the privilege.15
15
The defendants offer only a conclusory and speculative argument that a “high
Department of Justice” official would not assert the privilege because the classification of the
intercepts was “patently frivolous” and “calculated to give the government an unfair
advantage.” We see no evidence of bad faith by the Government, however.
71
No. 09-10560
No one seriously disputes that the Government possesses an important
privilege to withhold classified information, nor do we believe a contrary
assertion could be sustained. See Yunis, 867 F.2d at 622–23 (“The Supreme
Court has long recognized that a legitimate government privilege protects
national security concerns.”) (citing Chicago & S. Air Lines, Inc. v. Waterman
S.S. Corp., 333 U.S. 103, 111 (1948) (“[The executive branch] has available
intelligence services whose reports are not and ought not to be published to the
world.”)). Therefore, we conclude that the failure of a Government agency head
to invoke the classified information privilege here does not constitute reversible
error.
Next, the defendants contend that even if the Government properly
invoked a privilege to withhold classified information, the Government failed to
show that national security concerns required withholding their statements.
This argument is premised on the defendants’ belief that disclosing to them the
contents of their own statements “could not possibly endanger national security.”
We do not agree. As the court recognized in Yunis, the Government may have
an interest in protecting the source and means of surveillance that goes beyond
protection of the actual contents of an intercepted conversation. See Yunis, 867
F.2d at 623 (“Things that did not make sense to the District Judge would make
all too much sense to a foreign counter-intelligence specialist who could learn
much about this nation’s intelligence-gathering capabilities from what these
documents revealed about sources and methods.”). The Government
persuasively argued, both here and in the district court, that because the
defendants were not the only participants on the intercepted calls, disclosing the
intercepts could thwart ongoing or future investigations if the calls were
declassified en masse.
The defendants contend that this case is not like Yunis because the
Government chose to declassify and present at trial some of the intercepted
72
No. 09-10560
communications, thereby revealing the fact and means of the surveillance
obtained through FISA intercepts. But the fact that the Government determines
that declassification of some of the communications will not harm national
security does not ipso facto mean that declassification of all communications
would have the same effect. Although the Government’s claim of privilege may
yield when the information is essential to fairly determine the issues at trial or
when necessary for an important part of the defense, the defendants want us to
second guess in the first instance the Government’s determination of what is
properly considered classified information. We decline to do so.16 See United
States v. Abu Ali, 528 F.3d 210, 253 (4th Cir. 2008) (“[W]e have no authority[] to
consider judgments made by the Attorney General concerning the extent to
which the information in issue here implicates national security.”).
Having determined that the Government properly invoked its privilege to
withhold classified information, we would ordinarily next consider whether the
privilege nevertheless should have yielded to the defendants’ need for the
information, which requires a balancing of interests. See Roviaro, 353 U.S. at60–61; United States v. Sarkissian, 841 F.2d 959, 965 (9th Cir. 1988) (holding
that when deciding discovery issues under CIPA § 4 the district court may
balance a defendant’s need for the information against national security
concerns). The instant case is unusual, however, insofar as the Government
sought to withhold classified information from the defendants themselves, but
16
The defendants contend that accepting the Government’s rationale for asserting the
privilege in this case will encourage the practice of routine classification of all wiretap evidence
capturing a defendant’s conversations, including Title III wiretaps in domestic cases. We
foresee no such abusive practice, however, because the Government’s interest in protecting
classified information “cannot override the defendant’s right to a fair trial.” United States v.
Fernandez, 913 F.2d 148, 154 (4th Cir. 1990). Thus, as noted above, the asserted privilege will
not succeed when the information is helpful to the defense or essential to a fair determination
of the cause, but that balancing question is different from whether information should be
classified, a determination that is left to the Government. See 18 U.S.C. app. 3 § 1.
73
No. 09-10560
it disclosed the untranslated intercepts to cleared defense counsel and agreed to
further consider specific requests for declassification of other calls.
Under these facts, we do not believe that the district court’s discovery
rulings were erroneous. The defendants were provided with a substantial
amount of information that was deemed relevant. The defendants themselves
had access to declassified summaries of thousands of the intercepted calls that
were pertinent to the intelligence investigation, all of the calls that the
Government intended to use at trial, and the entire contents of four of the FISA
intercepts. The calls to which the defendants lacked access were available to
defense counsel. Despite arguing that they could not understand the Arabic
calls, counsel concede in their brief that they began the process of having the
calls translated by cleared translators, first in Texas and later in Washington,
D.C.17 Given the circumstances, we question whether there was a discovery
error at all, or whether the defendants have demonstrated prejudice. See In re
Terrorist Bombings, 552 F.3d at 126 (holding that the district court was
permitted to issue a protective order under CIPA limiting disclosure of classified
information to persons with proper security clearance, and noting that
“production of [classified] materials to a party’s attorney alone falls within the
common meaning of ‘discovery,’” notwithstanding defendant’s claim that counsel
could not interpret evidence adequately); see also United States v. Thai, 29 F.3d
785, 804–05 (2d Cir. 1994) (holding that Government’s failure to disclose
translation of defendant’s recorded statement prior to trial was not prejudicial
17
According to the defendants, their Texas translator lost his clearance and was unable
to continue, and the defense abandoned use of the Washington translators because “the process
was unwieldly and produced little useful information.” These circumstances were unfortunate,
but they were not the fault of the Government. Moreover, the fact that little useful
information was discovered when the defense counsel did attempt to use the procedures
authorized by the district court tends to suggest a lack of harm to the defendants.
74
No. 09-10560
where inter alia defense counsel had the tapes of the conversation and had had
a translator listen to them).
Assuming without deciding that the Government’s production of the
untranslated classified intercepts to the defendants’ attorneys was insufficient
under Rule 16, we nonetheless are satisfied that the district court did not abuse
its discretion by refusing to compel the Government to produce the intercepts to
the defendants themselves without further requests for declassification. Rule
16 requires that the Government disclose to the defendant “any relevant”
statements made by the defendant. FED. R. CRIM. P. 16(a)(1)(A) & (B)(i)
(emphasis added). This “necessarily implies the existence of irrelevant
statements by the defendant” that are not covered by the rule. Yunis, 867 F.2d
at 624 n.10. It bears emphasis that the defendants were not outright denied
access to the classified intercepts; instead, they were required to identify
intercepts that could be reviewed for a decision by the Government whether to
declassify and produce them or, presumably, to maintain its privilege claim. If
the Government chose to maintain its claim of privilege, the district court then
would have had to engage in the balancing test to determine if the privilege
should yield. But the proceedings never got that far because, as noted by the
district court, the defendants failed to participate in this process. The issue, as
we perceive it, is therefore whether the district court’s procedures requiring the
specific declassification requests denied the defendants access to information
that was relevant or would have been helpful to their defense.
The defendants essentially contend that the district court should have
made a wholesale determination whether their own statements on the
intercepted calls would have been helpful to their defense, and they argue that
we should remand the case for the district court to make that determination. We
are not persuaded. An assessment of materiality by the district court of all the
classified FISA intercepts without some narrowing by the parties was not
75
No. 09-10560
feasible in a case such as this involving tens of thousands of calls. Putting aside
the fact that the calls were in Arabic and untranslated, to have the district court
wade through the voluminous materials searching for scraps of conversation that
might be helpful to the defendants would be a waste of precious judicial
resources.
The defendants assert that they wanted access to their own FISA
intercepts to search for exculpatory evidence, such as conversations showing
their intent to comply with the law or their belief that contributions to zakat
committees that had not been designated as terrorist organizations was lawful.
They assert that these conversations would have shown their state of mind. But
assuming such statements exist, the defendants themselves were in the best
position to assist their counsel in identifying any exculpatory calls based on their
own recollection and their ability to review the declassified summaries and other
information provided to them. Counsel could then request that the statements
be declassified by requesting them by date or by the name of the person on the
call.
No doubt this would be a difficult task, but courts have required
defendants to demonstrate materiality even though the task is difficult. For
example, in Yunis, 867 F.2d at 624, the court recognized the “Catch-22” that
defendants had to demonstrate the materiality of classified information without
having access to the information and without knowing its nature. The court held
that the task was difficult but not impossible. Id. It emphasized that the
defendant “was present during all the relevant conversations” and therefore it
was reasonable “to expect some specificity” as to what benefit he expected from
the evidence. Id.Similarly, it is reasonable to have the defendants specify which classified
intercepts they wanted reviewed for declassification. Their argument that they
wanted conversations showing their state of mind, without more, presents
76
No. 09-10560
merely the theoretical possibility that the materials were relevant and does not
justify wholesale declassification of the intercepted calls. See Yunis, 867 F.2d at
623 (holding that “classified information is not discoverable on a mere showing
of theoretical relevance in the face of the government’s classified information
privilege”).
Review of the untranslated FISA intercepts, which numbered in the tens
of thousands and monitored the defendants for 24 hours per day for several
years, presented a daunting task to anyone who wanted to review them. In light
of the evidence already disclosed to the defendants, permitting wholesale
declassification, without some narrowing of the remaining calls, would have
jeopardized the Government’s interest in protecting national security merely to
permit a fishing expedition by the defendants. Therefore, the district court’s
requirement that the defendants seek declassification of specific FISA intercepts
was not an abuse of discretion under CIPA and properly balanced the
defendants’ need to mount a defense with the Government’s need to protect
classified information. We therefore reject the defendants’ argument on this
issue.
G. Harmless and Cumulative Error
Having reviewed the defendants’ claims of trial error, and having
identified erroneous rulings by the district court, we must next consider whether
those errors require a new trial under the rubric of harmless error. To reiterate,
we have found error in: (1) the admission of Shorbagi’s hearsay testimony that
Hamas controlled the West Bank zakat committees; (2) the admission of the
three hearsay PA documents showing that HLF was a financial resource for
Hamas and that Hamas had ties to the Ramallah Zakat Committee; (3) the
admission of John McBrien’s testimony giving a legal conclusion about donations
to the zakat committees; and (4) the admission of opinion testimony from former
National Security Council member Steven Simon about the United States’s
77
No. 09-10560
interests in the Middle East. For the reasons stated above in Sections E.1 and
E.4, we conclude that the errors in admitting McBrien’s and Simon’s testimony
were harmless. We therefore consider the errors related to Shorbagi’s testimony
and the PA documents. We will then consider the defendants’ claim of
cumulative error.
1. Harmless error
If a district court errs in the admission or exclusion of evidence at trial,
“such error can be excused if it was harmless error.” Lowery, 135 F.3d at 959;
see FED. R. CRIM. P. 52(A). “A nonconstitutional trial error is harmless unless it
‘had substantial and injurious effect or influence in determining the jury’s
verdict.’” Lowery, 135 F.3d at 959 (quoting Kotteakos, 328 U.S. at 776). Under
this standard, we ask “whether the error itself had substantial influence” on the
jury in light of all that happened at trial; if we are “left in grave doubt, the
conviction cannot stand.” Kotteakos, 328 U.S. at 765; see also United States v.
Williams, 957 F.2d 1238, 1244 (5th Cir. 1992) (“[W]e must view the error, not in
isolation, but in relation to the entire proceedings.”) (internal quotation marks
and citation omitted).
The harmless error examination is thus fact-specific and record-intensive,
requiring a close review of the entire trial proceedings. For this reason,
comparing the harmless error analysis in one case to the analysis in another is
not necessarily helpful. See United States v. Ong, 541 F.2d 331, 338 (2d Cir.
1976) (“Harmlessness is a relative term that requires specific definition in each
case by determining the effect on the jury’s verdict of the error’s absence.”); see
also United States v. Jennings, 527 F.2d 862, 868 (5th Cir. 1976); Benham v.
United States, 215 F.2d 472, 474 (5th Cir. 1954) (“Each case stands upon its own
peculiar facts and circumstances as to whether a defendant has been afforded
a fair trial.”). Therefore, we must judge the likely effect of any error in the case
before us based on the totality of the circumstances in this trial. “‘[U]nless there
78
No. 09-10560
is a reasonable possibility that the improperly admitted evidence contributed to
the conviction, reversal is not required.’” Williams, 957 F.2d at 1242 (quoting
Schneble v. Florida, 405 U.S. 427, 432 (1972)). Put another way, we will not
reverse a conviction “if ‘beyond a reasonable doubt the error complained of did
not contribute to the verdict obtained.’” United States v. Hall, 500 F.3d 439, 443
(5th Cir. 2007) (quoting United States v. Cornett, 195 F.3d 776, 785 (5th Cir.
1999)).
After a full review of the record, we are left with the firm conviction that
the trial errors we have identified do not require reversal. In light of the volume
of evidence against the defendants showing HLF’s connection to Hamas and
Hamas’s control of the zakat committees, the admission of Shorbagi’s testimony
and the PA documents was merely cumulative. It is well established that error
in admitting evidence will be found harmless when the evidence is cumulative,
meaning that substantial evidence supports the same facts and inferences as
those in the erroneously admitted evidence. See, e.g., Hall, 500 F.3d at 444(determining that the admission of disputed testimony was harmless because
“[t]he challenged portion of [the] testimony was merely cumulative of other
evidence introduced without objection. A number of other witnesses testified–in
much greater detail–that [the defendant] purchased illegal drugs from
McCallom.”); United States v. Okoronkwo, 46 F.3d 426, 435 (5th Cir. 1995)
(holding that “Agent Taylor’s testimony was merely cumulative of substantial
evidence establishing the various defendants’ participation in the conspiracy,”
and the admission of the testimony was harmless); United States v. Allie, 978
F.2d 1401, 1408–09 (5th Cir. 1992) (concluding that, because the Government
had introduced admissible testimony regarding the presence of aliens living in
defendant’s home, “the videotape was merely cumulative evidence and its
introduction constitutes harmless error”); United States v. Hutson, 821 F.2d
1015, 1018 (5th Cir. 1987) (holding that hearsay testimony about defendant’s
79
No. 09-10560
competency was harmless error in light of “voluminous” testimony on the subject
from three expert witnesses); see also 3B CHARLES A. WRIGHT, ET AL., FEDERAL
PRACTICE & PROCEDURE: CRIMINAL § 854 (3d ed.) (“Error in the admission of
evidence is harmless if the facts shown by that evidence are already before the
jury through other properly admitted evidence.”).
In this case, the erroneously admitted evidence from Shorbagi and the PA
documents showed that HLF financed Hamas and that Hamas controlled the
West Bank zakat committees to which HLF provided funds. We find from our
review of the evidence that these facts were before the jury from a plethora of
evidence.18 The Government introduced evidence showing a close connection
between the defendants and Hamas, which in turn supports the inference that
HLF’s fundraising was designed to support Hamas. The Government also
introduced evidence that the zakat committees to which HLF provided funds
were controlled by Hamas.
a. HLF’s connection to Hamas
Much of the Government’s evidence at trial pre-dated Hamas’s designation
as a terrorist organization. However, the evidence served the important function
of establishing the defendants’ relationship with Hamas and the intent of their
later actions. The evidence showed that the long-standing connection between
HLF and Hamas began in the late 1980s when HLF arose as a fundraising arm
for the Palestine Committee. This fact was notably evident from the Elbarasse
and Ashqar documents, which showed that HLF was created along with the IAP
18
Because one would not expect a purported charitable organization like HLF or one
of the zakat committees to openly acknowledge its ties to a terrorist group, much of the
Government’s evidence was circumstantial and required the jury to make logical inferences.
Our discussion here is not meant to be an exhaustive list of all the evidence that the
Government introduced pertaining to HLF or the zakat committees and their members. Our
review of the evidence, however, convinces us of the overwhelming nature of the connection
between HLF, the zakat committees, and Hamas. We endeavor here to outline only some of
the persuasive evidence of these connections.
80
No. 09-10560
(the Islamic Association for Palestine) and UASR (the United Association for
Studies and Research) under the Palestine Committee’s umbrella. The Palestine
Committee’s by-laws specifically recognized HLF as “the official organization”
for fundraising. The testimony of Avi and Levitt established that Palestine
Committees around the world served to support Hamas.
The chairman of the Palestine Committee in the United States, Hamas
leader Marzook, maintained contact information for Baker, El-Mezain, and
Elashi in his personal telephone book. Although El-Mezain told the FBI that he
had no relationship with Marzook other than occasional holiday telephone calls,
telephone records showed that Marzook called El-Mezain 52 times from 1989 to
1993. After Marzook was designated as a SDT and was taken into custody,
Baker explained to a newspaper reporter that his name was likely in Marzook’s
phone book because Marzook had made a large donation to HLF. That
conversation was captured in a wiretap. Baker claimed that Marzook had
written one check and HLF did not hear from him again. He also stated under
oath in a deposition in a separate civil suit that HLF had no relationship with
Marzook other than that single donation. Baker’s statements were untrue. The
evidence showed that the donation to which Baker referred was made in three
installments and occurred in 1992, but it was far from the only contact that
Marzook had with HLF and the individual defendants. Phone records showed
that Marzook called Baker 25 times from January 1989 to January 1990.
There were also numerous financial transactions between the defendants
and Marzook. Contrary to Baker’s denial of a relationship with Marzook, HLF
made three payments of ten thousand dollars to Marzook and his wife in 1988
and 1989. During the late 1980s and early 1990s, Marzook made payments of
hundreds of thousands of dollars to the IAP and the UASR, as well as smaller
payments to El-Mezain and Elashi. These and other pre-1995 financial
transactions cast suspicion on HLF as a conduit for Hamas funding.
81
No. 09-10560
For example, in 1988 HLF made payments of over $250,000 to an entity
known as K&A Trading. It sent this money to a Switzerland bank account held
by Khari H. al-Agha. Levitt testified at trial that al-Agha was a Hamas
financier. The evidence showed that al-Agha was connected to Marzook and was
listed in Marzook’s personal telephone book. His name also appeared in a
document found in Ashqar’s home, Ashqar Search 1, under “Important phone
and fax numbers. Palestine Section/Outside America.” Three months after
HLF’s last payment to K&A Trading, Al-Agha sent approximately $1.3 million
to Marzook. Investigating agents found no explanation in HLF’s records for the
payments to K&A Trading, which is not a charitable organization. Furthermore,
from 1989 to 1994, HLF sent over $700,000 to the Islamic Center of Gaza, which
was founded by Sheikh Yassin, the same person who founded Hamas.
The Government also introduced into evidence numerous donation checks
from the early 1990s that were made payable to the IAP but deposited into
HLF’s bank account and on which the donors had written in the memo line “for
Palestinian Mujahideen only.” One donor wrote a letter to Baker in 1991 asking
for books about Hamas and praising the “Islamic Uprising in Palestine.”
Indicating HLF’s connection to Hamas, Baker wrote back to inform the woman
that the IAP would send her the books and to “assure” her that HLF was a
“trustworthy organization” for people to “look up to, hoping and taking
advantage of the historic opportunity to support the resistance of a nation and
the jihad of a people.”
HLF’s role as an early financial resource for Hamas was also evident from
the Palestine Committee’s influence on HLF. For example, in 1994, a dispute
arose between HLF and Ashqar about who should receive the proceeds raised
from speaking appearances in the United States by Hamas leader Jamil
Hamami. Ashqar had arranged for Hamami to come to the United States and
wanted to keep the proceeds for a separate organization that Ashqar had
82
No. 09-10560
founded. Wiretaps captured conversations among Baker, El-Mezain, and several
others discussing the situation. Marzook and other Palestine Committee
members intervened to resolve the dispute. One of the wiretaps, Ashqar
Wiretap 4, captured a conversation between Ashqar, Hamami, and Hamas
leader Mohamed Siam. Siam informed Ashqar that the Palestine Committee
had decided that all funds raised by Hamami’s appearances would be
administered by HLF.
Further evidence that HLF’s fundraising was intended to benefit Hamas
came from the activities of HLF and the individual defendants. Numerous video
recordings found in HLF’s possession showed the defendants participating at
festivals, conferences, and fundraising events with known Hamas leaders, such
as Marzook and Mishal. The Hamas flag was visible at some of these events,
and many of the videos showed Abdulqader’s band performing songs that praised
Hamas.19 Moreover, HLF advertised in pro-Hamas magazines published by the
IAP that also contained articles praising Hamas and urging readers to donate
money to HLF in order to support the Intifada. One such magazine contained
a poem written by Baker stating, in part, that “we will not accept other than
Hamas.” Baker also traveled to Gaza in 1991 to meet with Hamas leader
Mahmoud Zahar about “establish[ing] a central zakat committee for the Gaza
sector.”
The defendants’ support for Hamas was also evident in suspicious
statements intercepted in wiretaps and documents found in HLF’s records. For
example, at the Philadelphia meeting Baker made statements suggesting that
participants should refer to Hamas only in code, and he instructed the
participants how to respond if anyone asked about the purpose of the meeting.
19
One video from 1991, HLF Search No. 71, flashed Hamas logos on the screen while
the band sang lyrics that included the following: “Long live Hamas, our Islamic Torch. O,
Mother, Hamas called for jihad over mosques’ loudspeakers, with freedom. Every day it resists
with stones and daggers. Tomorrow, with God’s help, it will be with a machine gun and a rifle.”
83
No. 09-10560
His statements suggested that deceptive practices were necessary to conceal the
intent of the Palestine Committee. They were also consistent with security
“guidelines” found among HLF’s materials stored at Infocom, which directed that
there should be cover stories agreed upon to explain things like meetings and
travel.20 Another wiretap, just two days before Hamas was designated as a
terrorist organization, captured a conversation in which El-Mezain and Odeh
spoke approvingly about a Hamas suicide bomb attack. Odeh referred to the
attack as a “beautiful operation,” and El-Mezain responded, “May it be good.”
Although there was nothing illegal about the defendants’ actions described
thus far, the evidence of the defendants’ early connection to Hamas and support
for its cause informed the inferences to be drawn by the jury from evidence that
came later, including the evidence of funds that were sent to the West Bank
zakat committees after the 1995 designation of Hamas as a terrorist
organization. For example, Shorbagi testified from personal knowledge that
HLF continued to provide funds to the same purportedly charitable
organizations as before Hamas’s designation. This testimony was based in part
on a conversation with El-Mezain. Indeed, there was ample evidence of financial
records and wire transfers showing that HLF provided funds to the same zakat
committees named in the indictment both before and after Hamas was
designated as a terrorist organization. Because the evidence strongly supported
the inference that the defendants were connected to Hamas before the
designation, it was logical for the jury to conclude that the defendants’ intent in
20
The document, which was labeled “The Foundation’s Policies & Guidelines,” included
comprehensive policies for ensuring the secrecy of the organization’s activity. For example, the
policies directed that documents should be arranged at meetings so that they could be easily
gotten rid of in an emergency; that measures should be taken before a meeting to be sure there
is no hidden surveillance equipment; that an alert signal should be given if the location is
monitored or if a member of the committee is followed; and that documents should be hidden
when traveling and a pretext should be devised in case they are discovered in a search. The
possession of such a document by a purportedly charitable organization was clearly suspicious.
84
No. 09-10560
financing the same committees after the designation was to support Hamas. But
there is additional evidence linking HLF to Hamas after Hamas’s designation.
One organization that received over $75,000 from HLF after Hamas was
designated as a terrorist organization was the Islamic Relief Agency. Avi
identified the Islamic Relief Agency as a Hamas intermediary organization that
received money and sent it to zakat committees controlled by Hamas in Gaza
and the West Bank. HLF’s continued support of Hamas was also shown in a
2001 letter on HLF letterhead addressed to Kamal al-Tamimi that directed a
$5,000 grant to the Young Muslim Youth Association. Testimony showed that
the Association was a subsidiary of ICS Hebron and that al-Tamimi was both a
member of ICS Hebron and of Hamas.
Still other evidence demonstrated that HLF’s function as a fundraising
entity for Hamas continued after Hamas was designated as a terrorist
organization. A 1996 video seized from HLF offices showed Abdulqader on stage
at a fundraising event sending a message of greeting to Hamas leaders Sheikh
Yassin, Dr. Abdel Aziz al-Rantisi, and Marzook. A wiretap in February 1996
captured a teleconference that HLF sponsored where one of the featured
speakers spoke of support in Pakistan for the “Palestinians under the leadership
of Hamas,” and the non-recognition of Israel, which was followed by a solicitation
for donations to HLF. A report from HLF’s “Special Events Department” found
at Infocom noted another teleconference in February 1996 that featured
Mohamed Siam, a Hamas leader, and noted that $18,500 was raised during the
call.21 A 1996 letter sent to HLF’s New Jersey office along with a donation stated
that the money was for “relief supplies and weapons to crush the hated enemy,”
and that “we must destroy Israel.” HLF not only accepted the donation but
continued to solicit funds from the letter’s author, who continued to donate
21
Siam’s name was spelled “Seyam” in the report.
85
No. 09-10560
money to HLF through 1998. A June 1996 letter from defendant Odeh to an
HLF officer showed that HLF had provided funds used to support the orphaned
children of Yehia Ayyash, who was identified as a Hamas engineer and inventor
of suicide bombs. An audio tape from 1996 that was seized from HLF’s offices
contained songs praising Hamas and discussions of suicide bombers as heroes.
In a wiretap of El-Mezain’s phone, also in 1996, El-Mezain received a phone call
about a suicide bombing on a bus in Jerusalem and stated, “It is good, by God.”
In 1997 HLF promoted a teleconference in a flier that advertised the call
as featuring Hamed Bitawi and Mohamed Siam. Levitt and Avi identified both
men as senior Hamas leaders. The flier was written in English on one side and
in Arabic on the other side. However, only the Arabic side referred to Bitawi and
Siam.
Wiretap evidence from 1999 further supported an inference that the
Palestine Committee was intimately involved in the activities of HLF. For
example, two 1999 conversations were intercepted involving Omar Ahmad, who
was a member of the Palestine Committee and was also associated with the IAP.
Ahmad was neither an employee nor a board member of HLF but he was heard
influencing HLF business. In Baker Wiretap No. 33, Ahmad instructed HLF
employee Haitham Maghawri, over Maghawri’s protest, to send money to
Lebanon because Baker had promised to give Ahmad $50,000 for a project there.
In another conversation, Ahmad instructed Baker on the compensation to be
paid to El-Mezain for his fundraising work. The two men also joked about the
telephone being bugged. Because Ahmad had no relationship to HLF other than
his connection to the Palestine Committee, his conversations about HLF
business and projects suggest that the Palestine Committee controlled HLF even
after the designation of Hamas as a terrorist organization.
Material seized from HLF’s offices and computers also demonstrated a
continuing connection between HLF and Hamas. For example, HLF maintained
86
No. 09-10560
a list of overseas speakers, modified as late as 1999, that contained the names
of several people identified as Hamas leaders, such as Fuad Abu Zeid, Hamed
Bitawi, and Dr. Yousef Karadawi. More than twenty of the speakers on the list
were also found in Marzook’s personal telephone book seized in July 1995. At
least eight of the listed speakers also shared the same phone number identified
at trial as being present on Hamas letterhead. The HLF speakers list
contradicted a statement by Baker to a reporter denying that HLF used Hamas
members as speakers.
Furthermore, numerous photographs of various Hamas leaders were found
on HLF’s computers in 2001. Some of the material found in HLF’s offices that
related to Hamas pre-dated Hamas’s designation as a terrorist organization, but
the fact that HLF maintained the material many years later was probative of
HLF’s support for Hamas. For example, a picture from 1990 was found in
Odeh’s New Jersey office in 2001 celebrating the one-year anniversary of the
imprisonment of Hamas founder Sheikh Yassin. A book was also found in
Odeh’s office that chronicled the life of the martyr Izz El-Din al-Qassam, who
served as the namesake of Hamas’s military wing. A list of “important
addresses” printed by the publisher in the back of the book included HLF’s
previous address in Indiana.
We believe that a jury could not help but infer from the above evidence
that the defendants had a close association with Hamas and that HLF acted to
fund Hamas both before and after Hamas’s designation as a terrorist
organization. Therefore, to the extent Shorbagi and the PA documents
suggested that HLF was a financial resource for Hamas, the erroneously
admitted evidence was cumulative. The same is true to the extent that Shorbagi
and the PA documents indicated that Hamas controlled the zakat committees,
as we explain in the next section.
b. Hamas’s control of the zakat committees
87
No. 09-10560
The Government introduced extensive evidence documenting HLF’s
financial support of the zakat committees, both before and after Hamas’s
designation as a terrorist organization. Therefore, evidence of Hamas’s ties to
those committees was also strong evidence that the defendants provided
material support to Hamas as charged in the indictment. There was abundant
evidence, in addition to Shorbagi’s testimony and the PA documents, showing
Hamas’s influence on the zakat committees and demonstrating that many of the
people with whom the defendants interacted from those committees were Hamas
leaders and members.
As already noted above, Levitt and Avi both testified about Hamas’s
control of the zakat committees. Levitt based his opinion on interviews with
Palestinian, Israeli, and American authorities, on the Hamas leadership of the
zakat committees, and on the Hamas-related materials found in the committees.
He specifically identified individuals associated with the Ramallah and Jenin
committees as being Hamas members, and he indicated that one such individual
had participated in a suicide bomb attack in 1997. Avi also gave his expert
opinion that Hamas controlled the zakat committees. In testimony cumulative
of Shorbagi’s testimony, Levitt and Avi both identified Hamed Bitawi, from the
Nablus Zakat Committee, as a Hamas member.
There was also other evidence connecting the Nablus Zakat Committee
and Bitawi to Hamas. For instance, Bitawi’s name was listed on the Nablus
committee’s bank records obtained by the FBI. His picture was found on HLF
computers wherein he was seen holding a gun and a Quran, with the word
“Hamas” in the background. Hamas leader Mishal specifically praised Bitawi
in a 1992 video recording. Another video, found in HLF’s possession and known
as the “tent video,” showed Bitawi participating in a meeting along with
88
No. 09-10560
approximately a dozen other individuals who had been deported from Israel.22
Bitawi introduced himself in the video as being from the Nablus Zakat
Committee. Other participants, including Dr. al-Rantisi, actually introduced
themselves as founders of Hamas, while Avi identified still others in the video
as Hamas members. The Hamas logo flashed on the screen several times. One
of the participants at the meeting specifically mentioned Baker and El-Mezain,
as well as HLF, which was providing support for the deportees.
Bitawi was further mentioned in the 1991 letter to Baker that was seized
from Elbarasse’s home, Elbarasse No. 22. Bitawi was listed in that letter as part
of “[o]ur presence” on the al-Tadamoun Society, a sub-group of the Nablus
committee.
Further evidence related to Hamas that was seized from the Nablus
committee included a postcard depicting two Hamas suicide bombers that
praised a suicide attack by one of them in 2001, as well as a key chain with the
picture of Hamas founder Sheikh Yassin. Numerous Hamas posters and
postcards with pictures of suicide bombers and Hamas leaders and symbols were
seized from the Nablus, Tulkarem, Hebron, and Jenin committees.
Other documents seized from the zakat committees by the Israelis also
showed Hamas’s influence on the committees. A few examples demonstrate this
point. An April 2001 “political statement” was seized from ICS Hebron. The
statement supported Hamas and jihad and advocated “infliction upon the enemy
[of] heavy casualties.” A 1999 letter from a group of prisoners was also found
in ICS Hebron. In the letter, the prisoners asked that the Young Muslim
22
In 1992, Israel deported to Lebanon over 400 Palestinians who were thought to be
associated with Hamas. The action was condemned by the international community, and the
deportees were eventually allowed to return to Palestine. The tent video found in HLF’s
possession documented remarks by some of the individuals who were deported while they were
in Lebanon.
89
No. 09-10560
Society, a sub-group of ICS Hebron, continue to support them. Avi testified that
the letter was consistent with Hamas’s support for prisoners.
Avi also testified that the head of ICS Hebron, Abdel Khaleq al-Natsheh,
was a Hamas leader. His testimony was corroborated by a 2001 video seized
from the zakat committee wherein al-Natsheh was described as the head of
Hamas in Hebron. Furthermore, al-Natsheh was also listed in Marzook’s
personal phone book.23
Israeli authorities also seized internal Hamas communications from the
zakat committees. For example, a document from January 2001 was found
folded very small and concealed in al-Natsheh’s office at ICS Hebron. The
document reported the results of Hamas’s internal election and discussed the
significance of providing support for martyrs and prisoners. The secretive
nature of the document was evident from instructions directing readers to call
a telephone number in Switzerland for “emergency matters” and to give a code
phrase. Avi testified that these instructions were a common security precaution
for Hamas. He also opined that the presence of the document at the zakat
committee was significant because it showed that the committee’s focus included
Hamas’s internal affairs.24
Other evidence also showed connections between Hamas and the zakat
committees that was cumulative of the Shorbagi testimony and the PA
documents. For example, Shorbagi identified Mohamed Fuad Abu Zeid and the
23
HLF documents found in the search of Infocom showed that HLF had been dealing
with al-Natsheh since the early 1990s. In a 1994 fax, HLF directed that al-Natsheh be notified
about a donation and instructed that funds be delivered to his committee. Other HLF
documents showed that al-Natsheh reported back to HLF about the use of grants to the
Hebron committee. This evidence further showed HLF’s connection to Hamas.
24
Another internal Hamas document was found in the Jenin Zakat Committee in 2004,
after HLF was closed. Nevertheless, the document, which mentioned Hamas founder Sheikh
Yassin and discussed Hamas’s internal contingency plans for responding to an Israeli
withdrawal from Gaza, is similar in nature to other political documents found in the
committees and demonstrates a connection with Hamas.
90
No. 09-10560
Jenin Zakat Committee as being connected to Hamas. Abu Zeid identified
himself as being from the Jenin committee in the tent video. Avi also identified
Abu Zeid as a Hamas figure. His testimony was further supported by a video of
a conference sponsored by the Muslim Arab Youth Association (“MAYA”) in
1992. Baker was a MAYA board member, and Hamas leader Mishal referred to
Abu Zeid at the conference as an important person in the Palestinian struggle.
Abu Zeid was further listed as a ranking Hamas figure in a book about Hamas
published by the UASR. The book, entitled The Palestinian Intifada in the
Hebrew Press: A study about the Islamic Resistance Movement “Hamas,” was
found among HLF’s records in the office of Defendant Odeh in 2001. Abu Zeid’s
name also appeared in Marzook’s personal phone book, as well as on HLF’s
speakers list. Moreover, in Elbarasse No. 22, the letter addressed to Baker, the
declarant asserted that the Jenin Zakat Committee was “Guaranteed . . . [b]y
virtue of Mr. Mohamed Fouad Abu Zeid’s position.”
Levitt further identified still another member of the Jenin Zakat
Committee, Fawaz Hamad, as a Hamas member. According to testimony from
Levitt and Agent Burns, Hamad not only worked for the Jenin Zakat Committee
but also became an HLF representative in Jenin after serving time in an Israeli
prison for aiding Hamas. Hamad operated a hospital that was controlled by the
Jenin committee, and he wrote a letter to defendant El-Mezain, Infocom Search
No. 30, that discussed the hospital operation. The letter identified various
hospital board members and others as “Islamist,” “deportee,” “brother,” “semi-
brother,” or “Fatah.” This letter was among the HLF documents found at
Infocom and was consistent with other evidence associating the term “Islamists”
with Hamas. Notably, at the Philadelphia meeting in 1993, Muin Shabib
referred to the Jenin committee’s building of the hospital, stating that it “is
really ours, for the Islamists either in management or the teams working in it.”
A document found in Ashqar’s home, Ashqar Search 5, also referred to the
91
No. 09-10560
“Islamist” presence in various charitable organizations, including ICS Hebron,
Nablus, Tulkarem, and Jenin.
Shorbagi also identified Jamil Hamami as a Hamas member, but there
was ample evidence of this fact. Hamami was associated with the Islamic
Science and Culture Center in the West Bank, to which HLF donated almost half
a million dollars before the center was closed in 1996. Levitt and Avi both
identified Hamami as a Hamas leader, although he apparently had a falling out
with Hamas in the mid-1990s. Hamami was the speaker at the center of the
dispute between HLF and Ashqar in 1994 when Marzook and the Palestine
Committee intervened. He was further identified as a ranking Hamas leader
in the UASR book about Hamas found in Odeh’s office. Furthermore, the search
of HLF offices uncovered a UASR publication that referred to Hamami as a
Hamas leader. The publication, The Middle East Affairs Journal, HLF Search
No. 108, was published in 1998 and stated that Sheikh Yassin assigned Hamami
to establish a Hamas branch in the West Bank. It also reported that Hamami
became the liaison between the Hamas command in the West Bank and the
leadership in Gaza. Hamami was also videotaped with Baker and El-Mezain at
a 1990 fundraising event. On the video, Mushtaha exhibit 1, Baker specifically
thanked Hamami for his presence. On another video, Infocom No. 67, Hamami
was seen at a school construction site thanking Baker, El-Mezain, and HLF for
their support. This evidence contradicted a sworn declaration from Baker
wherein he had denied that he and other HLF board members had any
connection with Hamas.
With regard to the Ramallah Zakat Committee, which the PA documents
linked to Hamas, both Levitt and Avi also testified that Hamas controlled it.25
25
The defendants argue that Avi relied on the improperly admitted PA documents in
his testimony. They are incorrect. Although Avi was questioned about the PA documents, he
indicated that he had reviewed “many reports” about the Ramallah Zakat Committee. He also
said that the PA documents were “additional to my analysis.”
92
No. 09-10560
Furthermore, the 1991 Elbarasse No. 22 letter to Baker, and statements at the
Philadelphia meeting in 1993, also indicated that Hamas controlled the zakat
committee. The letter stated that “all of [Ramallah] is ours,” while Shabib stated
at the Philadelphia meeting, “We could say that the zakat committee is ours,
including its management and officers.” Evidence seized from HLF included a
letter from Baker addressed to the Ramallah Zakat Committee’s director, Dr.
Mahmoud Al-Rumhi, whose name and telephone number also appeared along
with several other people identified as Hamas members on a list seized from
Elbarrasse’s home. Elbarasse Search 24. The UASR journal found in HLF’s
records identified still another member of the Ramallah Zakat Committee,
Mahmoud Mosleh, as having been arrested by the PA along with several leaders
of Hamas.26 Similarly, the book about Hamas found in Odeh’s office also
identified Ramallah Zakat Committee member Fadel Saleh Hamdan as one of
the ranking Hamas members who had previously been arrested.
In light of the above evidence, Shorbagi’s testimony and the PA documents
were cumulative of a large amount of evidence connecting Hamas to both HLF
and the zakat committees. We acknowledge that during questioning and in its
closing argument the Government highlighted some of the evidence that we have
found to be erroneously admitted, but we believe that the other evidence was
“formidable.” United States v. Steinkoenig, 487 F.2d 225, 229 (5th Cir. 1973).
Rather than be left with grave doubt about the verdict, we conclude that the
26
Mosleh also appeared in a video seized from HLF where a young boy in kindergarten
is interviewed at an HLF-sponsored event. The boy is questioned about the death of his father,
and Mosleh prompts him to answer. The boy is told not to forget when he grows up that his
father was killed by the Jews. Multiple video recordings were also seized from the zakat
committees and introduced at trial showing kindergarten ceremonies where children pretended
to be suicide bombers and sang songs praising Hamas. These videos were consistent with
testimony from Levitt and Avi about Hamas’s social wing and its indoctrination of children.
The presence of these videos at the zakat committees and the participation of committee
members like Mosleh in the ceremonies is further evidence of Hamas influence over the
purportedly charitable zakat committees.
93
No. 09-10560
weight and cumulative nature of the other evidence at trial precludes a finding
that the errors complained of had a substantial influence on the jury. See
Kotteakos, 328 U.S. at 765.
2. Cumulative error
For similar reasons, we also reject the defendants’ argument that the trial
errors constituted cumulative error. “[T]he cumulative error doctrine . . .
provides that an aggregation of non-reversible errors (i.e., plain errors failing to
necessitate reversal and harmless errors) can yield a denial of the constitutional
right to a fair trial, which calls for reversal.” United States v. Munoz, 150 F.3d
401, 418 (5th Cir. 1998). On claims of cumulative error, we “review the record
as a whole to determine whether the errors more likely than not caused a
suspect verdict.” Derden v. McNeel, 978 F.2d 1453, 1458 (5th Cir. 1992) (en
banc). To be sure, this was not a perfect trial, and there were errors, as we have
discussed. However, the Constitution does not guarantee a perfect trial, only
one that it is fair. See United States v. Lane, 474 U.S. 438, 445 (1986). We are
convinced from our review of the record that the defendants received a fair trial.
The defendants’ claim of cumulative error therefore fails.
H. Jury charge
Defendant Abdulqader next challenges the district court’s jury charge on
the First Amendment.27 The Government’s evidence against Abdulqader
included approximately one dozen video recordings of his participation in
musical and dramatic performances that referenced Hamas and contained
27
Defendants Baker, El-Mezain, and Odeh have adopted the First Amendment
argument in Abdulqader’s brief. We conclude, however, that the issue is inadequately briefed
as to them, and thus waived, because the brief discusses only Abdulqader’s purportedly
protected speech. See United States v. Caldwell, 302 F.3d 399, 421 n.19 (5th Cir. 2002)
(refusing to consider issue as inadequately briefed where defendant provided no analysis); cf.
United States v. Solis, 299 F.3d 420, 458 n.140 (5th Cir. 2002) (holding defendant’s attempt
to adopt by reference co-defendant’s sentencing guidelines issue insufficient where issue was
fact-specific).
94
No. 09-10560
Islamic or anti-Israel themes. The performances occurred at various fund-
raising events that HLF sponsored. The Government’s theory at trial was that
one of Abdulqader’s roles in the conspiracy was to motivate audiences to
contribute funds to HLF by performing pro-Hamas songs and skits. Most of the
performances occurred before Hamas was designated as a terrorist organization,
but three were recorded after the designation. The recordings before the
designation tended to be obvious in their support of Hamas, expressly referring
to both Hamas and killing Israelis. The recordings made after the designation
were less overt in their support, and the Government argued to the jury that the
defendants made this change intentionally in order to avoid directly showing
support for a terrorist organization. Abdulqader contends on appeal that his
speech in the video recordings was protected under the First Amendment, and
that the district court’s jury charge misstated the law and allowed the jury to
convict him based solely on protected speech or association.
“Because ‘[d]istrict courts enjoy substantial latitude in formulating a jury
charge,’ we review ‘all challenges to, and refusals to give, jury instructions for
abuse of discretion.’” United States v. Davis, 609 F.3d 663, 689 (5th Cir. 2010)
(alteration in original) (citation omitted). “We review a defendant’s objection to
the jury instruction by assessing whether the district court’s charge, as a whole,
was a correct statement of the law and whether it clearly instructed the jurors
as to the principles of the law applicable to the factual issues confronting them.”
United States v. Conner, 537 F.3d 480, 486 (5th Cir. 2008). We conclude that the
charge, when read as a whole, properly guided the jury and correctly stated the
law as it was to be applied to the facts of the case.
Abdulqader was charged with, inter alia, conspiracy to violate 18 U.S.C.
§ 2339B, which prohibits knowingly providing material support or resources to
95
No. 09-10560
a foreign terrorist organization.28 The statute also provides: “Nothing in this
section shall be construed or applied so as to abridge the exercise of rights
guaranteed under the First Amendment to the Constitution of the United
States.” § 2339(B)(i). The district court read both § 2339(B)(i) and the text of the
First Amendment29 in its jury charge. It then instructed the jury as follows:
This amendment guarantees to all persons in the United States the
right to freedom of speech, freedom of religion, and freedom of
association. Because of these constitutional guarantees, no one can
be convicted of a crime simply on the basis of his beliefs, his
expression of those beliefs, or his associations. The First
Amendment, however, does not provide a defense to a criminal
charge simply because a person uses his associations, beliefs, or
words to carry out an illegal activity. Stated another way, if a
defendant’s speech, expression, or associations were made with the
intent to willfully provide funds, goods, or services to or for the
benefit of Hamas, or to knowingly provide material support or
resources to Hamas, as described in the indictment, then the First
Amendment would not provide a defense to that conduct.
(Emphasis added).
As he did in the district court, Abdulqader argues that the last sentence
emphasized above incorrectly stated the law because, although speech may be
used to establish a defendant’s intent, the charge instructed that a defendant’s
speech, expression, or associations are themselves crimes, provided that the
defendant made them intending to provide support to Hamas. Abdulqader
asserts that most of his speech on the video recordings in evidence was protected
and non-criminal because it pre-dated Hamas’s designation as a terrorist
28
The statute provides, in relevant part: “Whoever knowingly provides material support
or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined
under this title or imprisoned not more than 15 years, or both . . . .” 18 U.S.C. § 2339B(a)(1).
29
“Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a redress of grievances.”
U.S. CONST. amend. I.
96
No. 09-10560
organization. He further asserts that the speech on the few tapes that post-
dated the designation was not criminal because it did not incite imminent
lawless action. See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (holding that
the First Amendment does not protect speech that “is directed to inciting or
producing imminent lawless action and is likely to incite or produce such
action”).
It is well established under First Amendment principles that there is no
prohibition on “the evidentiary use of speech to establish the elements of a crime
or to prove motive or intent.” Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993); see
also United States v. Salameh, 152 F.3d 88, 111–12 (2d Cir. 1998). In addition,
speech itself may be criminal under certain circumstances. As relevant to the
case at bar, for example, the Supreme Court recently upheld § 2339B in an as
applied First Amendment challenge, holding that Congress could criminalize
speech that provides material support to designated terrorists. See Holder v.
Humanitarian Law Project, 130 S. Ct. 2705, 2724 (2010) (stating that Congress
could “prohibit what plaintiffs want to do—provide material support to [the
designated terrorist organizations] in the form of speech”). The Court held that
§ 2339B is not limited to prohibiting monetary support of terrorists, and the
statute is tailored to reach only material support “coordinated with or under the
direction of a designated foreign terrorist organization.” Id. at 2726.
We recognize that the pre-1995 video recordings of Abdulqader’s speech
could not themselves be criminal under Humanitarian Law Project because it
was not illegal at that time to support Hamas.30 Assuming arguendo that the
language of the jury charge emphasized above could in isolation be read to allow
the jury to consider that speech to be criminal, we conclude that the charge as
30
As noted above, Hamas was designated as a specially designated terrorist
organization in January 1995, and it was designated as a foreign terrorist organization in
October 1997.
97
No. 09-10560
a whole did not permit the jury to convict Abdulqader based on protected speech.
See United States v. Klington, 875 F.2d 1091, 1098 (5th Cir. 1989) (“[T]he
presence of an imprecise or misleading statement within the jury instruction
does not by itself entitle defendants to a reversal.”).
First, the district court correctly charged the jury on the elements of the
offense. See id. (“Reversible error exists only if the jury charge, considered as a
whole, misled the jury as to the elements of the offense.”). The court charged the
jury that in order to convict the defendants, it had to find that (1) “two or more
persons agreed to provide material support” to Hamas, (2) the defendant
“knowingly became a member of the conspiracy with the intent to further its
unlawful purpose,” (3) “one of the conspirators knowingly committed at least one
overt act,” and (4) the conspiracy “existed on or after October 8, 1997” and the
defendant “was a member of the conspiracy on or after that date.” The
defendants do not challenge this part of the charge, which accurately set the
parameters for a conviction, including the existence of a conspiracy after Hamas
was designated as a terrorist organization.
Second, the First Amendment portion of the charge specifically instructed
the jury that a defendant could not be convicted “simply on the basis of his
beliefs, [or] his expression of those beliefs.” If we assume the jury followed its
instructions, as we must, the jury would not have convicted Abdulqader of
conspiracy for his pre-1995 conduct because it knew that Hamas had not been
designated as a terrorist organization. See Zafiro v. United States, 506 U.S. 534,
540 (1993) (“[J]uries are presumed to follow their instructions.”) (internal
quotation marks and citation omitted); Davis, 609 F.3d at 677.
Moreover, the charge specifically limited the jury’s consideration of the
defendant’s speech to how it pertained to the elements of the offense as alleged
in the indictment. The charge stated, in relevant part, that “if a defendant’s
speech . . . were made with the intent to . . . knowingly provide material support
98
No. 09-10560
or resources to Hamas, as described in the indictment,” the First Amendment did
not preclude a conviction. (Emphasis added). The indictment alleged that the
§ 2339B conspiracy began on or about October 8, 1997, the date that Hamas was
designated as a foreign terrorist organization. It then charged as follows:
In furtherance of the conspiracy, the defendants . . .
participated in fundraising events at various forums, including
conventions, services at mosques, seminars and other programs.
The HLF sponsored speakers at these events whose mission was to
raise funds for the HLF. Prior to the designation of HAMAS as
a Foreign Terrorist Organization, the speakers sponsored by the
HLF often praised the efforts of HAMAS and its violent activities
against Israel, and encouraged financial support for those efforts.
After HAMAS’ designation, upon instruction by the HLF, the
speakers changed tactics by using inflammatory language which
was designed to support HAMAS and its violent activities without
openly mentioning HAMAS. Some of the speakers sponsored by the
HLF included founding HAMAS leaders, prominent HAMAS
spokesmen and other speakers belonging to the Muslim
Brotherhood. Furthermore, at some of the fund-raising events, the
speakers, including the defendant Mufid Abdulqader,
performed skits and songs which advocated the destruction of the
State of Israel and glorified the killing of Jewish people.
(Emphasis added).
The indictment thus described the kind of performances in which
Abdulqader appeared and charged that the performances occurred at gatherings
with the intent to raise money for HLF. It further described how the
performances changed tactically after Hamas was designated as a terrorist
organization, which is when the unlawful conspiracy began. The language in the
First Amendment section of the charge cabined the jury’s consideration of the
speech to those circumstances. It thus directed consideration of the speech in
the context of motive or intent. See Mitchell, 508 U.S. at 489.
As a whole, the charge provided that the First Amendment was not a
defense to speech that was made with the intent to support Hamas in the
99
No. 09-10560
manner described in the indictment. The indictment included the change in tone
after Hamas’s designation in order to conceal a course of conduct that became
criminal after the designation. In other words, Abdulqader’s speech may have
been protected prior to Hamas’s designation as a terrorist organization, but it
became relevant to proving whether he joined the conspiracy that began after
the designation. By instructing the jury to consider the intent of the speech as
alleged in the indictment, the charge merely permitted the jury to determine
whether the Government’s theory of the case was correct and did not permit
conviction based solely on speech.
Finally, our conclusion that the district court’s charge properly guided the
jury’s application of the law to the facts is supported by the way in which the
Government argued its case to the jury in closing argument. The Government
argued in closing that the video recordings of Abdulqader were evidence of his
efforts to aid the fundraising for Hamas and were also evidence of how the
defendants changed their fundraising message after Hamas’s designation as a
terrorist organization. Referring to the videos, the prosecutor stated:
That person that Mufid Abdulqader pretended to kill wasn’t dressed
as an Israeli soldier. He was dressed as a civilian in a suit. And this
is the message that they were sending, the Palestine Committee and
the Holy Land Foundation was sending out to its audience before
they toned it down after the Oslo Accords.
The Government then emphasized that the speech should be used in conjunction
with determining the defendants’ intent:
Now, the Defense attorneys have talked about, and I am sure they
are going to talk about this again with you, freedom of speech. And
freedom of speech is an incredible right that we have here in the
United States. But the Defendants aren’t charged with what they
said. They are charged for what they did, and that is sending
money to Hamas.
****
100
No. 09-10560
They are perfectly right to say, “I support Hamas.” But when they
start giving money to Hamas, then what they said can and will be
used against them to determine their intent.
In sum, the court’s charge on the First Amendment may not be read in a
vacuum. The district court’s charge on the elements of the offense, in
conjunction with its express directive that speech alone cannot support a
conviction and its limitation that the speech must be considered in relation to
the indictment, rendered the charge a correct statement of the law to be applied
to the issues confronting the jury.31 The First Amendment challenge to the jury
charge is therefore denied.32
I. The search of HLF’s offices
The defendants challenge on Fourth Amendment grounds the
Government’s seizure of property from HLF’s offices without a warrant. The
Treasury Department, through OFAC, seized the property immediately after
designating HLF as a terrorist organization and issuing a blocking order
pursuant to IEEPA. See 50 U.S.C. § 1702(a)(1)(B). The FBI later obtained a
warrant from a magistrate judge to search the property. The defendants moved
to suppress the evidence found in that subsequent search because OFAC lacked
a warrant at the time of the initial seizure.
The district court denied the motion, holding that the search and seizure
were permissible under an exception analogous to administrative searches of
31
Abdulqader also argues that the Government introduced “certain associational
evidence” concerning his familial relationship to Hamas leaders, and he asserts that being
related to a terrorist leader is not a crime. We see nothing in the district court’s jury charge,
however, that instructed the jury it could consider familial relationships in its determination
of guilt.
32
An amicus brief filed by a diverse group of organizations challenges the district court’s
jury charge on the substantive violations of § 2339B based on the Fifth Amendment’s Due
Process Clause. Because none of the defendants has raised this issue, we agree with the
Government that it is not properly before us. See United States v. McMillan, 600 F.3d 434, 455
n.68 (5th Cir. 2010).
101
No. 09-10560
closely regulated industries. The court further reasoned that the good faith
exception to the exclusionary rule also precluded suppression because OFAC
reasonably relied on IEEPA when it initially seized HLF’s property, and the FBI
reasonably relied on the warrant issued by the magistrate judge.
We hold that the district court correctly denied the suppression motion but
for different reasons. The defendants do not challenge the blocking order under
the Fourth Amendment. As we will explain, we conclude that the defendants’
privacy interests were greatly reduced by the unchallenged blocking order, that
the Government had a strong special need to act quickly to prevent asset flight,
and that the Government’s movement of HLF’s property into storage until
obtaining a warrant was a minimal intrusion into the defendants’ diminished
privacy interests. Under these circumstances, the Government’s conduct did not
violate the Fourth Amendment.
On appeal of a motion to suppress, “the district court’s findings of facts are
reviewed for clear error, viewing the evidence in the light most favorable to the
government. The district court’s conclusions of law are reviewed de novo.”
United States v. Hernandez, 647 F.3d 216, 218 (5th Cir. 2011) (internal quotation
marks and citation omitted). We view the facts underlying the suppression
decision in the light most favorable to the Government as the prevailing party.
United States v. Howard, 106 F.3d 70, 73 (5th Cir. 1997). We may affirm the
district court’s ruling on any ground supported by the record. Hernandez, 647
F.3d at 218. The Government bears the burden of showing that a warrantless
search or seizure was valid. United States v. Gomez-Moreno, 479 F.3d 350, 354
(5th Cir. 2007).
In this case OFAC initially acted under IEEPA and the blocking order to
secure HLF’s property. Pursuant to IEEPA, the President is authorized to
declare a national emergency “to deal with any unusual and extraordinary
threat” to the United States originating in substantial part in a foreign state.
102
No. 09-10560
See 50 U.S.C. § 1701(a). The President is empowered to “investigate, regulate,
or prohibit” transactions in foreign exchange, banking transfers, and importing
or exporting currency or securities. § 1702(a)(1)(A). In addition, the President
may
investigate, block during the pendency of an investigation, regulate,
direct and compel, nullify, void, prevent or prohibit, any acquisition,
holding, withholding, use, transfer, withdrawal, transportation,
importation or exportation of, or dealing in, or exercising any right,
power, or privilege with respect to, or transactions involving, any
property in which any foreign country or a national thereof has any
interest by any person, or with respect to any property, subject to
the jurisdiction of the United States[.]
§ 1702(a)(1)(B). The President is also authorized to issue necessary regulations
to further IEEPA’s purpose, which the President has delegated to the Treasury
Department. See § 1704. OFAC is the office that is principally responsible for
administering the Government’s orders and regulations under IEEPA.
As relevant to this case, and as noted above, in 1995 the President issued
Executive Order 12947 under IEEPA designating, inter alia, Hamas as a SDT.
See 60 Fed. Reg. 5079 (Jan. 23, 1995). In 2001, in response to the terrorist
attacks of September 11, the President issued Executive Order 13224
recognizing a continued threat to the national security, foreign policy, and
economy of the United States and declaring a national emergency to deal with
that threat. See 66 Fed. Reg. 49079 (Sept. 23, 2001). The Executive Order also
found “that because of the pervasiveness and expansiveness of the financial
foundation of foreign terrorists, financial sanctions may be appropriate for those
foreign persons that support or otherwise associate with these foreign terrorists.”
Id. The Executive Order designated various individuals and organizations as
specially designated global terrorists (“SDGTs”).33 It further provided for the
33
The initial list of SDGTs has since been amended to include Hamas.
103
No. 09-10560
designation of additional SDGTs if organizations or persons are found to “act for
or on behalf of” or are “owned or controlled by” designated terrorists, or if they
“assist in, sponsor, or provide . . . support for,” or are “otherwise associated” with
them. See id. The Executive Order thereby authorized the Government to
freeze or block the assets of organizations or persons that supported or were
associated with designated terrorists.
The ramifications of being named a SDT subject to a blocking order are
significant. Once assets have been blocked, they no longer may be used unless
OFAC issues a license authorizing the SDT to engage in transactions involving
the blocked assets. See 31 C.F.R. § 501.801. As cogently described by the Ninth
Circuit, “[b]y design, a designation by OFAC completely shutters all domestic
operations of an entity. All assets are frozen. No person or organization may
conduct any business whatsoever with the entity, other than a very narrow
category of actions such as legal defense.” Al Haramain Islamic Found. v. U.S.
Dep’t of the Treasury, __ F.3d __, No. 10-35032, 2011 WL 4424934, at *10 (9th
Cir. Sep. 23, 2011). A party subject to a designation may seek administrative
reconsideration and limited judicial relief, but the “designation is indefinite” and
the limited remedies “take considerable time.” Id.; see also 31 C.F.R. § 501.807.
The Treasury Department designated HLF as a SDT and a SDGT on
December 3, 2001. On the same day, OFAC issued a blocking notice to HLF
stating in relevant part:
[A]ll real and personal property of [HLF], including but not limited
to all offices, furnishings, equipment and vehicles, as well as funds
and accounts in which [HLF] has any interest, are blocked. All
assets of [HLF], including but not limited to bank, charge and
investment accounts, securities, and safe deposit boxes at any
financial institution located in the United States or organized under
the laws of the United States, including their overseas branches, are
blocked. Blocked property may not be transferred, withdrawn,
exported, paid, or otherwise dealt in without prior authorization
from OFAC.
104
No. 09-10560
All transactions involving property in which [HLF] has any interest,
including any property of third parties in the possession or control
of [HLF], are prohibited without specific authorization from OFAC.
As a consequence of this action, activities in, use of, and occupation
of [HLF] offices, including this facility and each [HLF] office subject
to United States jurisdiction, are hereby prohibited. . . . No property
may be removed from the premises other than property that is
clearly the personal property of the individual requesting to remove
the property from the premises. Persons who are unable to remove
their personal belongings at this time must contact OFAC in writing
. . . to make arrangements to secure their belongings at a later
date. . . . Requests for specific licenses for payment of outstanding
financial obligations owed by [HLF], such as salary, rent and utility
payments, among others, must also be made in writing[.]
The notice also advised that if HLF wished to seek a license to engage in any
transaction involving blocked property, or to challenge the designation as a
SDGT, it should refer to specified regulations for the proper procedure.
In order to effectuate the blocking notice, OFAC personnel, accompanied
by federal officers, went the next day (December 4, 2001) to the HLF offices in
Richardson, Texas; Bridgeview, Illinois; San Diego, California; and Paterson,
New Jersey. OFAC served the notices at each location on HLF representatives,
who signed the notices and permitted entry into the offices. In Richardson,
Defendant Baker signed the notice but initially denied permission to enter. Two
hours later, after consulting with counsel and after a televised public
announcement revealing HLF’s designation, Baker allowed OFAC into the office.
Defendant El-Mezain similarly permitted entry into the San Diego office after
consulting with counsel. The record shows that at each location independent
contractors acting on behalf of OFAC took possession of HLF’s assets and moved
them to storage. There is no indication that anyone from OFAC or the FBI
examined the property at that time.
On appeal, the defendants contend that OFAC’s warrantless entry into the
HLF offices was unconstitutional because nothing in IEEPA allowed the
105
No. 09-10560
Government to enter private property to effectuate a seizure or search. The
Fourth Amendment provides that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated . . . .” U.S. CONST. amend. IV. The Supreme Court
has recognized that the Fourth Amendment “protects two types of expectations,
one involving ‘searches,’ the other ‘seizures.’” United States v. Jacobsen, 466
U.S. 109, 113 (1984). “A ‘seizure’ of property occurs when there is some
meaningful interference with an individual’s possessory interests in that
property.” Id. A “search,” on the other hand, “occurs when an expectation of
privacy that society is prepared to consider reasonable is infringed.” Id. The
defendants argue, consistent with these principles, that the Government’s entry
into the HLF offices interfered with HLF’s possessory interests and infringed the
privacy of HLF and its employees.
The Government responds, in part, that a warrant is not required before
OFAC issues a blocking order under IEEPA. We need not resolve that question,
however, because the defendants do not challenge under the Fourth Amendment
OFAC’s issuance of the blocking order, the scope of the order, or OFAC’s ability
to issue such an order without a warrant. But see Al Haramain, 2011 WL
4424934, at *20–25 (holding that a warrant was required before OFAC issued
a blocking order under IEEPA, and the Government failed to show the
applicability of an exception to the warrant requirement). We therefore presume
that the blocking order was properly issued.
Because the defendants do not challenge the blocking order, OFAC’s
implementation of it must be assessed by comparing the order’s effect on the
defendants’ privacy interests with any special needs of the Government under
IEEPA. We think this balancing of interests does not support suppression of the
evidence in this case.
106
No. 09-10560
“Warrantless searches and seizures are per se unreasonable unless they
fall within a few narrowly defined exceptions.” United States v. Kelly, 302 F.3d
291, 293 (5th Cir. 2002) (internal quotation marks and citation omitted). The
Government contends here that the “special needs” exception to the warrant
requirement justified the search and seizure. See, e.g., Griffin v. Wisconsin, 483
U.S. 868, 873 (1987) (recognizing that a warrantless search may be justified
“when special needs, beyond the normal need for law enforcement, make the
warrant and probable-cause requirement impracticable”) (internal quotation
marks and citation omitted). The Supreme Court has applied the special needs
exception in a variety of circumstances when the Government performs functions
beyond typical law enforcement or crime control and when the intrusion into the
privacy interest at stake is minimal. See, e.g., Illinois v. Lidster, 540 U.S. 419,
427–28 (2004) (holding that a warrantless highway checkpoint to investigate
fatal hit-and-run accident was valid where “stops interfered only minimally with
liberty of the sort the Fourth Amendment seeks to protect”); Mich. Dep’t of State
Police v. Sitz, 496 U.S. 444, 451 (1990) (upholding sobriety checkpoints where
intrusion was “slight”); O’Connor v. Ortega, 480 U.S. 709, 725 (1987) (plurality)
(permitting warrantless searches of government employee’s work area for work-
related purposes where employee’s privacy interests in office “are far less than
those found at home or in some other contexts”); United States v.
Martinez-Fuerte, 428 U.S. 543, 565 (1976) (upholding warrantless fixed Border
Patrol checkpoint where stop caused “minor interference” with Fourth
Amendment interests).
In Al Haramain, the Ninth Circuit held that the special needs exception
did not apply in the context of the Government’s issuance of a blocking order
under IEEPA. The court noted that “[t]he exception requires a weighing of the
nature and extent of the privacy interest at hand against the nature and
immediacy of the government’s concerns and the efficacy of the procedures
107
No. 09-10560
employed in meeting those concerns.” Al Haramain, 2011 WL 4424934, at *20
(citing Bd. of Educ. v. Earls, 536 U.S. 822, 830–34 (2002)). The court there
concluded that the private entity had a substantial privacy interest that was
severely restricted by the blocking order because the order effectively shut down
all business operations indefinitely, and that the Government failed to show why
a warrant should not be required when balanced against that interest. Id. at
*22–23.
We agree with the Ninth Circuit’s assessment of the debilitating effect of
a blocking order, but because the defendants have not challenged the order in
this case, our analysis begins at a different point than Al Haramain, and the
applicable balancing of interests yields a different result. Here, the
unchallenged blocking order gave the Government complete control over both
HLF’s assets and the premises and reduced the defendants’ interests to a
minimum. As the Ninth Circuit recognized in Al Haramain, the significant
effects of a blocking order are “by design.” Id. at * 22 (“[T]here is no limited
scope or scale to the effect of the blocking order.”). Indeed, a “designation [as a
SDT] is not a mere inconvenience or burden on certain property interests;
designation indefinitely renders a domestic organization financially defunct.”
Id. at *10. Further, “[a] blocking order effectively shuts down the private
entity.” Id. at *22.
The text of the blocking order in this case demonstrates the Government’s
control and the virtual elimination of any possessory and privacy interests held
by the defendants in the assets and premises of HLF. The blocking order
expressly directed all persons to leave the offices. It prohibited the defendants
from engaging in any activity involving HLF’s property, and it even prohibited
the defendants from occupying the premises without OFAC’s prior authorization.
The warrantless imposition of these conditions has not been contested here.
Unlike in Al Haramain, we are therefore faced with a presumptively valid order
108
No. 09-10560
that stripped the defendants of any possessory interests in the HLF offices and
assets. Any remaining privacy interest that the defendants had was minimal,
and, as we discuss below, was protected by the subsequent warrant obtained
prior to the Government’s search.
Balanced against the defendants’ significantly diminished privacy
interests is the Government’s “extremely high” interest in preventing actions
that could facilitate terrorism. Al Haramain, 2011 WL 4424934, at *23. An
important purpose of a blocking order is to prevent asset flight, which was a
genuine concern in this case. The evidence here showed that the defendants had
been funneling millions of dollars to organizations associated with Hamas. They
were capable of quickly transferring large sums of money by wire transfer to
overseas bank accounts controlled by HLF and others. These accounts were in
locations such as the West Bank and Gaza, where they were likely to be beyond
the reach of a judicial warrant. The Government therefore had a strong interest
in moving quickly to prevent the flight of assets that could be used to further
terrorist activity. See id. at *23 (recognizing that “‘asset flight’ is a legitimate
concern”).
In addition to considering the competing interests of the defendants and
the Government, we also consider the nature of the Government’s intrusion into
the defendants’ interests. We address here an uncontested blocking order that
has comprehensively restricted the defendants’ privacy and possessory interests.
Viewed objectively, therefore, we believe that the Government’s mere transfer
of HLF’s property from the offices to a storage facility pursuant to the blocking
order, without invading the contents of the material, did not intrude into the
defendant’s privacy or possessory rights any more than was reasonable under
the initial blocking order. See Jacobsen, 466 U.S. at 115 (“The reasonableness
of an official invasion of the citizen’s privacy must be appraised on the basis of
the facts as they existed at the time that invasion occurred.”).
109
No. 09-10560
We stress the importance of the fact that the Government took custody of
the property without searching it and secured it to prevent unauthorized use,
loss, or destruction. As we have said, the Government was already permitted by
IEEPA and the blocking order to control the property and the premises, and its
transfer of the assets to storage did not further circumscribe the defendants’
interests. Had the Government actually examined the property before obtaining
a warrant, this might be a different case.34
Furthermore, to the extent that the defendants retained any privacy
interests in the materials seized by the Government, those interests were
adequately protected by the warrant obtained before the Government actually
searched the materials. That warrant separated the search of HLF’s property
from the initial seizure, which we think adds to the overall reasonableness of the
Government’s action and of the district court’s denial of the defendants’
suppression motion. The warrant affidavit submitted to the magistrate judge
did not rely on, or refer to, evidence seized by OFAC from the HLF offices as a
basis for probable cause to search. The warrant affidavit stated only that the
34
Relying on G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977), the defendants
argue that merely because the Government has the power to block its assets does not mean
that it may enter private property to seize the assets. In G.M. Leasing, the Supreme Court held
that the Government’s power to levy taxes and to seize property in satisfaction of tax liens did
not give the Government power to enter private property without a warrant to seize the
property. Id. at 354. The circumstances of the instant case are distinguishable. G.M. Leasing
concerned “the normal enforcement of the tax laws.” Id. The instant case, however, goes
beyond the pale of normal law enforcement because IEEPA and the seizure here were designed
to prevent the movement of assets that could be used to facilitate terrorist activity and came
after a Presidential declaration of a national emergency. See, e.g., Humanitarian Law Project,
130 S. Ct. at 2724 (“[T]he Government’s interest in combating terrorism is an urgent objective
of the highest order.”); Cassidy v. Chertoff, 471 F.3d 67, 87 (2d Cir. 2006) (Sotomayor, J.)
(upholding warrantless searches designed “to protect ferry passengers and crew from terrorist
acts”); MacWade v. Kelly, 460 F.3d 260, 270–75 (2d Cir. 2006) (holding constitutional
suspicionless searches of passenger baggage on subway to prevent terrorist attack); In re
Sealed Case, 310 F.3d 717, 746 (FISA Ct. Rev. 2002) (finding in context of FISA that the
“nature of the ‘emergency,’ which is simply another word for threat, takes the matter out of the
realm of ordinary crime control”). Moreover, the blocking order in this case, unlike the tax
liens in G.M. Leasing, restricted the defendants’ privacy rights in their premises. We find G.M.
Leasing to be inapposite.
110
No. 09-10560
investigating officer had reviewed an inventory from the initial seizure and
noted that various materials had been seized, such as “desks, files, books,
binders, computers, telephones, fax machines, miscellaneous documents, and
other items that HLF used to facilitate its activities.” Nothing in the record
suggests that the investigating officer misled the magistrate judge when
applying for the warrant, and we believe the Government properly relied on the
warrant for purposes of the search. See, e.g., United States v. Leon, 468 U.S.
897, 922–23 (1984); United States v. Sibley, 448 F.3d 754, 757 (5th Cir. 2006)
(police may not rely on a warrant if the affiant misled the magistrate judge with
information he knew was false); United States v. Shugart, 117 F.3d 838, 843 (5th
Cir. 1997) (“‘evidence obtained by law enforcement officials acting in objectively
reasonable good-faith reliance upon a search warrant is admissible’”) (citation
omitted).
In sum, the Government’s broad control over the defendants’ premises and
property afforded by the blocking order and IEEPA—control which has not been
challenged by the defendants—greatly reduced the defendants’ possessory and
privacy interests. In light of the Government’s strong interest in combating
terrorism, and the minimal intrusion here to the defendants’ diminished
interests, we conclude that the Government’s movement of HLF’s property from
the HLF offices into a storage facility until it obtained a judicial warrant to
search the materials did not infringe the defendants’ Fourth Amendment rights.
We therefore affirm the district court’s denial of the suppression motion.
J. Defendant Elashi’s double jeopardy issue
We next address a double jeopardy claim by Defendant Elashi, who argues
that his conspiracy convictions in the instant case violate the Double Jeopardy
Clause of the Fifth Amendment because he was convicted of conspiracy in a
separate case in 2006. In the 2006 case, Elashi was convicted in the Northern
District of Texas for, inter alia, conspiracy to deal in property of a specially
111
No. 09-10560
designated terrorist, in violation of IEEPA, 50 U.S.C. §§ 1701–1707, and
Executive Order 12947; substantive violations of that prohibition; and
conspiracy and substantive money laundering offenses related to the SDT
violations. See United States v. Elashyi, 554 F.3d 480, 491 & n.3 (5th Cir. 2008).
The defendants in that case were Elashi; four of Elashi’s brothers; his cousin,
Nadia Elashi; Nadia’s husband, Mousa Abu Marzook; and Elashi’s Texas-based
computer company, Infocom Corporation.
Elashi’s 2006 conviction stemmed from financial transactions between
Marzook and Infocom. In the early 1990s, Marzook made investments in
Infocom of several hundred thousand dollars that were designated as loans, and
he received interest payments in return. See id. at 490. Infocom later changed
its books to reflect that the loans came from Nadia, and interest payments were
made to her but deposited in Nadia and Marzook’s joint bank account. Id. After
Marzook was identified in a newspaper article as a Hamas leader, Infocom
recorded a $50,000 check from Marzook as a loan from Nadia. Marzook was
subsequently arrested while trying to enter the United States in July 1995, and
he was designated as a SDT in August 1995. Thereafter, the interest payments
to Nadia and Marzook’s joint account stopped for a while but then resumed as
deposits in an account solely in Nadia’s name. Id. at 491. The payments
continued until 2001 when OFAC issued a blocking order instructing Infocom to
freeze funds in which OFAC determined that Marzook had an interest. Id.Elashi argues in the instant appeal that his convictions in this case for
conspiracy to provide material support to Hamas (count 1), conspiracy to violate
IEEPA (count 11), and conspiracy to commit money laundering (count 22) violate
the Double Jeopardy Clause because the conspiracies substantially overlap with
his conspiracy convictions from the 2006 case. Whether a prosecution violates
the Double Jeopardy Clause is a question of law that we review de novo. United
States v. Delgado, 256 F.3d 264, 270 (5th Cir. 2001).
112
No. 09-10560
The Fifth Amendment’s Double Jeopardy Clause “protects against a
second prosecution for the same offense after conviction.” Brown v. Ohio, 432
U.S. 161, 165 (1977) (internal quotation marks and citation omitted); United
States v. Levy, 803 F.2d 1390, 1393 (5th Cir. 1986). In a conspiracy case, the
central issue for double jeopardy purposes is whether there was one agreement
and one conspiracy or more than one agreement and more than one conspiracy.
United States v. Rabhan, 628 F.3d 200, 204 (5th Cir. 2010).
“The defendant carries the initial burden of establishing ‘a prima facie
nonfrivolous double jeopardy claim’ that the two conspiracies charged are in fact
a single conspiracy and therefore charge a single offense.” Id. (citation omitted).
“If a defendant comes forward with a prima facie nonfrivolous double jeopardy
claim, then the burden of establishing that the indictments charge separate
crimes is on the government.” Delgado, 256 F.3d at 270. “To determine whether
the alleged conspirators entered into more than one agreement, we evaluate five
factors: 1) time; 2) persons acting as co-conspirators; 3) the statutory offenses
charged in the indictments; 4) the overt acts charged by the government or any
other description of the offense charged that indicates the nature and scope of
the activity that the government sought to punish in each case; and 5) places
where the events alleged as part of the conspiracy took place.” Id. at 272.
Because no single factor is determinative, we must consider all of them. Id.
1. Time
The time period for the conspiracies charged in the 2006 case (August 1995
to July 2001) was wholly contained within the time period charged in the instant
case for the IEEPA and money laundering conspiracies (January 1995 to July
2004) and the material support conspiracy (October 1997 to July 2004). “An
overlap in time periods between two alleged conspiracies favors a finding of a
single conspiracy, especially when that overlap is substantial.” Rabhan, 628
F.3d at 205 (finding that an overlap of twenty-one months was substantial and
113
No. 09-10560
favored a finding of a single conspiracy). The overlap of nearly four and six
years in the two cases is substantial and favors a finding of a single conspiracy.
2. Co-conspirators
In the 2006 case, Elashi was charged with conspiring with his brothers, his
cousin Nadia, Marzook, and Infocom. Those co-conspirators were also named as
co-conspirators in the instant case. The Government concedes the overlap but
argues that the instant case involves many more conspirators, and that the
common co-conspirators played different roles in the conspiracies.
An overlap in personnel participating in conspiracies tends to indicate a
single conspiracy. Id. at 205. Nevertheless, we agree with the Government that
the key co-conspirators—most notably the co-defendants, Baker, El-Mezain,
Abdulqader, Odeh, and the corporation, HLF—did not participate in Elashi’s
first conspiracy. The nature of the overlapping co-conspirators’ participation is
relevant to finding a single conspiracy, especially when the co-conspirators are
the “central characters,” Levy, 803 F.2d at 1395, or the “key personnel” in both
cases. Rabhan, 628 F.3d at 205. If the central figures of the cases are different,
or if they serve different functions for purposes of the conspiracies, it is less
likely that there is a single agreement. See United States v. Guzman, 852 F.2d
1117, 1120–21 (9th Cir. 1988) (finding that “the roles performed by Guzman and
Serrano in the two conspiracies were quite different” and therefore “do[] not
compel a finding that a single conspiracy existed”).
In the first case, the central characters were Infocom, Nadia Elashi, and
Marzook insofar as the conspiracy involved payments from Infocom to Nadia in
which the real party in interest was Marzook. Elashi was implicated in the
conspiracy in his role at Infocom. Marzook was the designated terrorist whose
property made the defendants’ actions illegal. In the instant case, the key
characters in the conspiracy were those connected to HLF who were involved in
raising donations in support of Hamas. Elashi was implicated in the conspiracy
114
No. 09-10560
for his role as an HLF founder and officer, and Hamas was the designated
terrorist. In the 2006 case, there were a limited number of participants in the
conspiracy and the purpose of the agreement was confined to dealing in the
property of Marzook, whereas the instant conspiracy involved different key
participants with the much broader purpose of aiding all of Hamas through
HLF. The central characters of the conspiracy in this case are not the same as
those in the 2006 case. See Rabhan, 628 F.3d at 207 (“[T]he overlap of central
characters” is “more important than the number of overlapping characters.”).
We conclude that the presence of some overlap in co-conspirators does not weigh
in favor of finding a single conspiracy.
3. Statutory offenses
Next, in both prosecutions Elashi was charged with money laundering
offenses in violation of 18 U.S.C. § 1956. He was also charged in both cases with
conspiracy to violate IEEPA. The Government contends that the IEEPA
conspiracies were different because the indictment in the 2006 case charged a
general conspiracy under 18 U.S.C. § 371,35 while the IEEPA conspiracy in the
instant case was charged under IEEPA’s specific conspiracy provision in 50
U.S.C. § 1705. We agree with Elashi, however, that the IEEPA conspiracy in the
instant case necessarily relied on the general conspiracy statute of § 371 because
the specific IEEPA conspiracy provision of § 1705 did not become effective until
2007, after the indictment was returned in this case. See Pub. L. No. 110-96,
§ 2(a), 121 Stat. 1011, 1011 (Oct. 16, 2007).
The Government nevertheless argues that there were two conspiracies
because the instant case also charged Elashi with conspiracy to provide material
support to a foreign terrorist organization, in violation of 18 U.S.C. § 2339B,
35
“If two or more persons conspire . . . to commit any offense against the United States
. . . or any agency thereof in any manner or for any purpose, and one or more of such persons
do any act to effect the object of the conspiracy, each shall be fined under this title or
imprisoned not more than five years, or both.” 18 U.S.C. § 371.
115
No. 09-10560
which was not an offense charged in the 2006 case. “Additional charges in one
case may still lead to a finding that there is only one conspiracy, particularly
when ‘the statutes that do not overlap are related.’” Rabhan, 628 F.3d at 207(quoting Levy, 803 F.2d at 1392). The conspiracies charged under IEEPA, 50
U.S.C. § 1705, and the material support statute, 18 U.S.C. § 2339B, are related
insofar as they both prohibit support for designated terrorist organizations. The
statutory offenses charged in both the instant case and the 2006 case are
therefore the same or similar.
While this would militate toward finding a single conspiracy, we must be
mindful that “[i]t is possible to have two different conspiracies to commit exactly
the same type of crime.” United States v. Thomas, 759 F.2d 659, 666 (8th Cir.
1985). We think that is the case here. Elashi was essentially charged in both
cases with two similar crimes of aiding a designated terrorist, but the designated
terrorist and the purpose of each offense were not the same. See Guzman, 852
F.2d at 1121 (finding two separate conspiracies despite identical statutory
charges where “[t]he goals of the two conspiracies . . . were not identical”); see
also United States v. Coscarelli, No. 98-21120, 2000 WL 284044, at *3 (5th Cir.
2000) (“[W]here the second conspiracy has a different goal than the first, a
second prosecution is not barred by double jeopardy.”).
The 2006 conspiracy involved Marzook as the designated terrorist, and the
goal of the conspiracy was to make payments to him from Infocom as a result of
his investment in the company. The payments varied in amount between $1,000
and $15,000. Elashyi, 554 F.3d at 490. In the instant case, the designated
terrorist was Hamas, and the goal was to provide material support for Hamas
by raising funds through HLF’s charitable network and by funneling money to
Hamas organizations, like the zakat committees. The jury found that as a result
of the conspiracy the defendants provided approximately $12.4 million in
support of Hamas. To be sure, Marzook was present in both cases, and evidence
116
No. 09-10560
of Elashi’s transactions in the 2006 case also served as evidence of his intent in
the instant case. However, Elashi was convicted of dealing in the property of
Marzook in the 2006 case, while he was convicted of the offense of providing
support for Hamas in the instant case. We conclude that because the goals of
the two offenses differed, the similarity in statutory charges does not compel a
finding that there was a single conspiracy.
4. Overt acts
Elashi concedes that the overt acts charged in the two cases were different,
but he argues that a single conspiracy may be found because the overt acts in
both cases span similar time periods and are similar in character. Although he
is correct that a single conspiracy may be found even without overlapping acts,
the “nature and scope of the allegedly separate conspiracies” must permit a
finding that there was a single objective and a single agreement. Rabhan, 628
F.3d at 207 (internal quotation marks and citation omitted). For example, in
Rabhan we held that there was a single conspiracy even though the Government
charged different overt acts because the defendant had engaged in the multiple
acts as part of a course of conduct with a single objective. See id. at 207–08
(holding that defendant’s “overall strategy to form a comprehensive integrated
catfish growing and processing operation” showed that the fraudulent loans in
both Georgia and Mississippi were interrelated and favored a finding of a single
conspiracy); see also Levy, 803 F.2d at 1395–96 (finding a single conspiracy
where a series of fraudulent loans were obtained in order to hide the fact of
another series of fraudulently obtained loans). We disagree with Elashi that the
overt acts charged against him in both cases were sufficiently similar in nature
to show that there was a single conspiracy.
In the 2006 case, the indictment charged Elashi with, inter alia, ten
separate check and wire transfers from Infocom’s bank accounts to bank
accounts held in Nadia’s name. In the instant case, the overt acts included
117
No. 09-10560
specific wire transfers from HLF bank accounts to the seven zakat committees
alleged to be operated on behalf, or under the control, of Hamas. The indictment
in this case also charged that funds were wired from HLF bank accounts in
Texas to the HLF office in the West Bank and Gaza, and then re-distributed to
the zakat committees and to the family members of individuals who had been
either “martyred” or jailed for terrorist activities. As noted above, the objective
in the first case was to deal in the property of the specially designated terrorist
Marzook because of his investment in Infocom, whereas the agreement in the
instant case was to raise funds through HLF and funnel the money to Hamas,
a different designated terrorist, in support of Hamas’s social wing. Although
Marzook was a Hamas leader, the two conspiracies alleged direct benefits to two
different designated terrorists. Cf. United States v. Cihak, 137 F.3d 252, 258
(5th Cir. 1998) (finding two separate conspiracies where, inter alia, “the overt
acts alleged in the two cases are different and . . . the actions of the separate
conspiracies alleged in the other case did not advance the conspiracy alleged in
this case and vice versa”) (internal quotation marks and citation omitted).
Elashi argues that because the same evidence of financial transactions
between Infocom and Marzook was introduced at both the first and second trials,
the conspiracies were the same. We are not persuaded. The evidence was
admitted in this case solely to show Elashi’s intent or state of mind under
Federal Rule of Evidence 404(b), and the district court gave a proper limiting
instruction. See FED. R. EVID. 404(b) (Evidence of prior acts is admissible “as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident . . . .”); cf. United States v. Felix, 503 U.S. 378, 386
(1992) (“[A] mere overlap in proof between two prosecutions does not establish
a double jeopardy violation.”).
Relying on our decision in Levy, Elashi argues that the introduction, under
Rule 404(b), of evidence of acts underlying one conspiracy at the trial for a
118
No. 09-10560
second conspiracy proves the existence of a single conspiracy. This may be true
under some circumstances, but Elashi’s statement of the law is too broad. See
United States v. Deshaw, 974 F.2d 667, 675 & n.47 (5th Cir. 1992) (recognizing
that evidence may be introduced under Rule 404(b) under circumstances that do
not implicate double jeopardy). In Levy, 803 F.2d at 1392, the defendants were
acquitted in the first trial of conspiracy to misapply funds and to make false
statements in connection with loans. They were then prosecuted at a second
trial for conspiracy to make false statements to a bank and to defraud the United
States and the FDIC. Id. Evidence concerning the overt acts underlying the
second trial had previously been offered in the first trial. Id. at 1395. The
transactions involved in the two cases were part of a continuing course of
fraudulent conduct and were designed to hide the larger scheme. See id. at
1396. For this reason, we held that the Government’s prior introduction of the
same evidence under Rule 404(b) at the first trial supported a single conspiracy.
Id. We found that the transactions from both cases “are related” and that “the
record reveals that the acts involved in both alleged conspiracies are the same.”
Id.; see also United States v. Nichols, 741 F.2d 767, 772 (5th Cir. 1984) (series of
nearly identical drug shipments forming basis of three separate conspiracy
indictments offered under Rule 404(b) in prosecution for fourth conspiracy to
import drugs showed a single conspiracy to commit multiple violations of the
drug control law). As explained above, we do not see a similar relationship here
indicating a single agreement and a common objective because the transactions
in the instant case—wire transfers to zakat committees in support of Hamas’s
social wing—do not further or advance the conspiracy in the first case to transfer
funds to Marzook. Moreover, the acts involved in both cases were not the same.
We conclude that this factor does not support a finding of a single conspiracy.36
36
Elashi also asserts that the Government’s argument on appeal that there were two
conspiracies conflicts with its position in the district court that the transactions from the first
119
No. 09-10560
5. Place
Finally, both conspiracies were alleged to have occurred in the Dallas
Division of the Northern District of Texas. Elashi also points out that the
principals of both cases—Infocom and HLF—were located across the street from
each other in Richardson, Texas, where all the transactions originated.
Although there is a clear overlap of the conspiracies in Texas, the Government
argues that the place of the two conspiracies is different because the overt acts
in the first case were domestic transfers from Infocom’s account to Nadia’s
account, whereas the instant case is broader geographically and involved
international transfers from HLF to the zakat committees in the West Bank.
When conspiracies “overlap geographically, it is appropriate to consider where
they are based as an indicator of whether the geographic overlap is significant.”
Rabhan, 628 F.3d at 208. The Government has not shown that the “base of
operations” for both conspiracies was anywhere other than Texas, where both
corporate entities and most of the defendants were located. Therefore, the place
of decision making in both cases was the same, which militates in favor of
finding a single conspiracy.37
Based on our review of the two cases and our consideration of the five
relevant factors, we conclude that the indictments charged separate offenses.
The time period, place of the conspiracies, and the statutory charges were the
same or similar in the two cases, but the goals of the offenses were not the same.
case were intrinsic to the instant case. We disagree. In response to Elashi’s double jeopardy
objection and alternative request for a limiting instruction in this case, the Government
initially argued to the district court that Rule 404(b) was inapplicable, but it abandoned that
position after the district court requested further briefing from the parties. After further
research, the Government agreed in the district court that the defendants were entitled to a
limiting instruction. The Government therefore has not taken an inconsistent position on
appeal.
37
HLF also had offices in New Jersey, Illinois, and California, and defendant Odeh was
in the New Jersey office. The Government has not argued, however, that decisions of HLF
came from anywhere other than its headquarters in Texas.
120
No. 09-10560
There was also some similarity in the co-conspirators, but the key figures in the
conspiracies and the roles of those who overlapped were different. The
conspiracies also involved two separately designated terrorists, Marzook and
Hamas. The five factors are “for the guidance of the court,” and the Government
need not “show that each of the factors demonstrates the existence of more than
one conspiracy.” United States v. Tammaro, 636 F.2d 100, 104 (5th Cir. 1981).
We conclude that, on balance, there were two separate agreements, and
therefore two conspiracies, to achieve different objectives. Elashi’s double
jeopardy argument is therefore unavailing.38
K. Defendant El-Mezain’s collateal estoppel issue
Defendant El-Mezain next raises a collateral estoppel challenge to his
conviction on the single conspiracy count for which he was re-tried in this case.
He makes two related arguments. First, he contends that because the jury
acquitted him of all other charges at the first trial, collateral estoppel precluded
the instant conviction. Second, he argues that the district court failed to exclude
evidence in the instant trial that was related to the acquitted counts at the first
trial. We consider each point separately, applying de novo review. See United
States v. Brown, 571 F.3d 492, 497 (5th Cir. 2009) (“Whether a prosecution
violates the Double Jeopardy Clause or is precluded by collateral estoppel are
issues of law that we review de novo.”).
38
Because we find no double jeopardy violation, we need not address Elashi’s argument
that such a violation would also require dismissal of the substantive counts against him in
light of the district court’s Pinkerton instruction and the jury’s general verdict.
121
No. 09-10560
1. Collateral estoppel as a bar to the instant conviction
In the first trial in this case, count 1 of the indictment charged El-Mezain
with conspiracy to provide material support to a Foreign Terrorist Organization
(“FTO”) (i.e., Hamas), in violation of 18 U.S.C. § 2339B (“the count 1 conspiracy”
or “§ 2339B conspiracy”). The jury failed to reach a verdict on that count, but it
acquitted El-Mezain on thirty-one remaining counts. Those counts charged El-
Mezain with substantive offenses for providing material support to a FTO
(counts 2–10); conspiracy to provide funds, goods, and services to a Specially
Designated Terrorist (“SDT”), in violation of IEEPA (count 11) (“the IEEPA
conspiracy” or “count 11 conspiracy”); substantive offenses for providing funds,
goods, and services to a SDT (counts 12–21); and conspiracy and substantive
money laundering offenses (counts 22–32). At the second trial, El-Mezain was
re-tried on only the count 1 conspiracy.
A re-trial following a hung jury generally does not violate the Double
Jeopardy Clause because the jury’s failure to reach a verdict does not terminate
the original jeopardy. See Yeager v. United States, 129 S. Ct. 2360, 2366 (2009);
Richardson v. United States, 468 U.S. 317, 323–26 (1984). However, the Double
Jeopardy Clause also incorporates the collateral estoppel doctrine, which
provides that “when an issue of ultimate fact has once been determined by a
valid and final judgment, that issue cannot again be litigated between the same
parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443 (1970).
Collateral estoppel may therefore affect successive criminal prosecutions based
on what the jury decided in the first prosecution. United States v. Brackett, 113
F.3d 1396, 1398 (5th Cir. 1997). A subsequent prosecution will be completely
barred “if one of the facts necessarily determined in the former trial is an
essential element of the subsequent prosecution.” Id.For example, in Ashe the defendant was charged with but acquitted of
armed robbery of one of six participants in a poker game. Ashe, 397 U.S. at
122
No. 09-10560
437–38. The only contested issue at trial was whether the defendant had been
one of the robbers. Id. at 438. The state re-tried the defendant at a second trial
for robbing one of the other poker players, and the jury convicted him. Id. at
439–40. The Supreme Court held that the conviction was impermissible under
the collateral estoppel doctrine because the first jury had necessarily found that
the defendant had not been one of the robbers, a fact that the state was
precluded from relitigating. Id. at 445. The collateral estoppel doctrine “bars
relitigation only of those facts necessarily determined in the first trial.”
Brackett, 113 F.3d at 1398 (internal quotation marks and citation omitted).
Because the first jury in Ashe could not have acquitted the defendant without
finding that he was not involved in the robbery, the second prosecution was
barred.
When the jury returns a general verdict of acquittal, the facts that it
necessarily found are not always obvious. Therefore, to determine what the jury
“necessarily decided” following an acquittal by a general verdict, the court must
consider “the record of a prior proceeding, taking into account the pleadings,
evidence, charge, and other relevant matter, and conclude whether a rational
jury could have grounded its verdict upon an issue other than that which the
defendant seeks to foreclose from consideration.” Yeager, 129 S. Ct. at 2367(internal quotation marks and citation omitted); see also Brackett, 113 F.3d at
1399. This is a practical inquiry made “with an eye to all the circumstances of
the proceedings.” Yeager, 129 S. Ct. at 2367 (internal quotation marks and
citation omitted). In making this determination, the court may not consider the
jury’s failure to reach a verdict on some counts alleged in the indictment. See id.at 2367–68. The defendant bears the burden of demonstrating that “‘the issue
whose relitigation he seeks to foreclose was actually decided in the first
proceeding.’” United States v. Whitfield, 590 F.3d 325, 371 (5th Cir. 2009)
(quoting Dowling v. United States, 493 U.S. 342, 350 (1990)).
123
No. 09-10560
Based on the above principles, the key to the collateral estoppel analysis
is whether an acquittal in a prior trial necessarily determined a fact that the
Government sought to prove in the second trial. As relevant to the instant case,
collateral estoppel would bar El-Mezain’s conviction of the § 2339B conspiracy
if, when the jury acquitted him in the first trial of the count 11 IEEPA
conspiracy and the other offenses, the jury necessarily decided a fact that was
also a required element of the § 2339B conspiracy. See Brackett, 113 F.3d at1398–99. Put another way, we must “determine whether the jury in the [first]
trial rationally could have acquitted [El-Mezain] without determining in his
favor the issues crucial to the [§ 2339B] charges.” United States v. Leach, 632
F.2d 1337, 1340 (5th Cir. 1980).
At the time of the indictment in this case, IEEPA provided: “Whoever
willfully violates any license, order, or regulation issued under this chapter
shall, upon conviction, be fined not more than $50,000, or, if a natural person,
may be imprisoned for not more than ten years, or both; and any officer, director,
or agent of any corporation who knowingly participates in such violation may be
punished by a like fine, imprisonment, or both.” 50 U.S.C. § 1705(b) (emphasis
added) (1996). For purposes of this case, a conviction of the IEEPA conspiracy
turns on both willful and knowing conduct. The material support statute,
however, does not contain the same willfulness element and requires only that
the defendant’s conduct be performed “knowingly.” See 18 U.S.C. § 2339B
(“Whoever knowingly provides material support or resources to a foreign
terrorist organization, or attempts or conspires to do so, shall be fined under this
title or imprisoned not more than 15 years, or both.”).
Focusing on the different levels of intent required under the above
provisions, the district court held in this case that the two statutes required the
establishment of different facts. It concluded therefore that El-Mezain’s
acquittal of the IEEPA conspiracy in count 11 did not bar a re-trial of the
124
No. 09-10560
§ 2339B conspiracy in count 1 because the two conspiracies are not functionally
equivalent. The district court reasoned that the jury’s acquittal did not
necessarily establish a fact that was an element of the conspiracy at the second
trial because the jury could have found that El-Mezain did not act “willfully” for
purposes of count 11 (the acquitted count) but deadlocked on whether he acted
“knowingly” for purposes of count 1 (the hung count).
El-Mezain argues that the district court erred because the indictment and
the Government’s theory of prosecution at the first trial did not distinguish
between the count 1 and the count 11 offenses, which he argues were identical
in nature and relied upon the same factual predicate and overt acts. El-Mezain
reasons that “all essential facts” of the count 1 conspiracy upon which the
Government sought to re-try him were therefore decided against the
Government because the acquittals on all the other counts necessarily
established that he neither knew nor intended that donations by HLF to the
zakat committees were for the benefit of Hamas. We disagree.
At the first trial, the jury was instructed that a guilty verdict on the count
1 conspiracy required it to find the following:
First: that two or more persons agreed to provide material support
or resources to a foreign terrorist organization, in his case, Hamas;
Second: that the defendant under consideration knowingly became
a member of the conspiracy with the intent to further its unlawful
purpose;
Third: that one of the conspirators knowingly committed at least one
overt act for the purpose of furthering the conspiracy charged in
Count 1;
Fourth: that the charged conspiracy existed on or after October 8,
1997, the date that Hamas was designated a Foreign Terrorist
Organization, and that the defendant under consideration was a
member of the conspiracy on or after that date; and
125
No. 09-10560
Fifth: that this court has jurisdiction over the offense.
(Emphasis added). The above elements are the “essential facts” that El-Mezain
sought to foreclose from re-litigation in the second trial, and he must show that
the jury’s acquittal actually decided them in the first trial. See Whitfield, 590
F.3d at 371. A review of the record and the acquitted counts, however, shows
that the jury did not necessarily resolve the above facts against the Government
in reaching its verdict. The jury could have acquitted El-Mezain of the count 11
conspiracy by finding only an absence of willfulness, which is not one of the
above essential facts for a conviction of the count 1 conspiracy.
On the acquitted IEEPA conspiracy charged in count 11, the jury was
instructed that to find El-Mezain guilty it had to find the following:
First: that two or more persons agreed to violate Executive Order
12947 by contributing funds, goods, and services to, or for the
benefit of, a Specially Designated Terrorist, namely, Hamas;
Second: that the defendant under consideration knowingly and
willfully became a member of the conspiracy with the intent to
further its unlawful purpose;
Third: that one or more of the conspirators knowingly committed at
least one overt act for the purpose of furthering the conspiracy
charged in Count 11; and
Fourth: that the charged conspiracy existed on or after January 23,
1995 -- the date Hamas was designated a Specially Designated
Terrorist -- and that the defendant under consideration was a
member of the conspiracy on or after that date.
(Emphasis added). Although the jury’s general verdict of acquittal “does not
specify the facts ‘necessarily decided,’” Brackett, 113 F.3d at 1399, the record and
the jury charge demonstrate that a rational jury could have based its verdict of
acquittal on count 11 on a fact that was not an essential element of the count 1
conspiracy. See Yeager, 129 S. Ct. at 2367 (the court must decide “‘whether a
126
No. 09-10560
rational jury could have grounded its verdict upon an issue other than that
which the defendant seeks to foreclose from consideration’”) (quoting Ashe, 397
U.S. at 444).
The jury was instructed that “knowingly” means “that the act to which it
refers was done voluntarily and intentionally, and not because of mistake or
accident.” The district court further instructed the jury that “willfully” means
“that the act to which it refers was committed voluntarily and purposely, with
the specific intent to do something the law forbids; that is to say, with bad
purpose either to disobey or disregard the law.”
As part of their defense, the defendants seized on this concept of
willfulness by positing that they did not believe it was illegal to support the
zakat committees because the committees were never designated as terrorist
organizations and they were never told the committees could not receive
donations. On cross-examination of Levitt, the defense elicited testimony that
a person wanting to know if an organization had been determined to be a SDT
would consult the designation list compiled by the Secretary of the Treasury.
The defense pointed out at trial that the zakat committees were not on the list.
The defense also called as a witness a former congressman, whom HLF had
hired purportedly to meet with the Treasury Department on its behalf in order
to ensure that HLF’s actions complied with the law. The defendants argued that
the Government never told the congressman that it considered the zakat
committees to be part of Hamas. As further evidence that the defendants had
not acted willfully, the defendants pointed out intercepted telephone calls where
Baker had said that he needed to see the designation list so that he would know
to whom donations were prohibited. The defendants also emphasized this theme
of non-willful conduct in closing argument. El-Mezain’s counsel asked the jury
to think about what HLF “did to make sure it was on the right side of the law.”
He specifically argued to the jury that the defendants did not “provide aid to any
127
No. 09-10560
designated organizations once the law was in effect” and that the Government
“didn’t tell them” not to deal with the zakat committees.
We agree with the Government, therefore, that in light of El-Mezain’s
defense and how the jury was instructed, the jury could have rationally
acquitted El-Mezain on count 11 because it thought he participated in an
agreement to support Hamas but did not do so willfully because he was under
the belief that donations to the zakat committees were not prohibited, and thus
he did not act with the specific intent to willfully disregard the law. This means
that the jury’s acquittal on count 11 did not necessarily find the essential facts
against the Government that comprise the elements of the § 2339B conspiracy
in count 1, i.e., whether El-Mezain knowingly became a member of that
conspiracy.39 See United States v. Sarabia, __ F.3d __, No. 10-40125, 2011 WL
4977839, at *5 (5th Cir. Oct. 20, 2011) (holding that retrial for possession of
marijuana was not barred by acquittal of conspiracy “[g]iven the evidence
presented at trial and the instructions the jury received” because the jury could
have found that one element—the existence of an agreement—was not proved
but still found that defendant “was the driver of the RV” containing the drugs);
Whitfield, 590 F.3d at 372 (finding after review of jury charge and counsel’s
closing argument that issues sought to be foreclosed were not necessarily found
in the first trial); see also Leach, 632 F.2d at 1341 (holding that, although
collateral estoppel barred prosecution for receiving illegal campaign
contributions following acquittal for “vote buying,” the “case would [have been]
resolved differently” had the defendant “presented a defense that he thought the
39
Similarly, we also agree with the Government that El-Mezain’s acquittal on the
substantive counts in the indictment did not bar the retrial on the conspiracy count because
the jury could have rationally found that El-Mezain did not personally participate in the
substantive counts. See also Brackett, 113 F.3d at 1400 (holding that a general verdict of
acquittal “merely indicates that the government has failed to convince the jury, beyond a
reasonable doubt, of at least one essential element of the substantive offense; it does not
‘necessarily determine’ any facts at issue in the conspiracy trial”).
128
No. 09-10560
money he paid out was going for legitimate campaign expenditures rather than
for vote buying”). Because the first jury could have rationally based its verdict
on the count 11 conspiracy on an issue apart from the facts necessary for a
determination of guilt on count 1, the retrial was not barred by collateral
estoppel. See United States v. Lee, 622 F.2d 787, 790 (5th Cir. 1980) (“The
doctrine of collateral estoppel precludes the subsequent prosecution only if the
jury could not rationally have based its verdict on an issue other than the one
the defendant seeks to foreclose.”).
Of course, it is possible that, as El-Mezain posits, the jury could have
acquitted him of the count 11 conspiracy for other reasons, such as that El-
Mezain did not intend to provide support for Hamas or that the entities to which
HLF provided assistance were not controlled by Hamas. But the fact that it is
possible that the jury could have based its verdict on any number of facts is
insufficient to apply the collateral estoppel doctrine. See Sarabia, 2011 WL
4977839, at *5; Brackett, 113 F.3d at 1398–99; Lee, 622 F.2d at 790 (“When a
fact is not necessarily determined in a former trial, the possibility that it may
have been does not prevent re-examination of that issue.”) (internal quotation
marks and citation omitted).
El-Mezain argues that the above analysis improperly looks at the elements
of the offenses as if this were a traditional double jeopardy issue instead of
determining what facts were necessarily decided in the first trial. Contrary to
El-Mezain’s argument, examination of the different intent levels does not inject
an improper elements analysis into the issue. Instead, it is consistent with
Supreme Court precedent instructing that we decide whether the jury could
have based its verdict on an issue other than the issues the defendant seeks to
foreclose. See Yeager, 129 S. Ct. at 2367; Ashe, 397 U.S. at 444; see also Sarabia,
2011 WL 4977839, at *4 (“In order to determine what the jury necessarily
decided based upon the evidence presented, we must consider the elements of a
129
No. 09-10560
drug-related conspiracy.”); Bolden v. Warden, W. Tenn. High Sec. Facility, 194
F.3d 579, 584 (5th Cir. 1999) (“To determine the facts necessarily decided in [a
defendant’s] first trial under the first step of the collateral estoppel analysis, [a
court] must examine the elements of the statutes under which [the defendant]
was charged.”). In this case, we hold that because El-Mezain has not met his
burden to show that the jury necessarily decided any of the issues related to the
§ 2339B conspiracy, including the “knowing” requirement of that statute, the
retrial was not barred by collateral estoppel.40
El-Mezain further argues that even if the above analysis is correct, the
district court gave a general instruction on conspiracy that incorporated proof
of willfulness into all the conspiracy counts. The district court explained in the
charge that “[b]efore I instruct you in detail on the specific elements of the
crimes charged in the indictment, I first want to instruct you on general
principles of conspiracy law.” The court then explained that one element of a
conspiracy is “[t]hat the defendant under consideration knew the unlawful
40
In support of his argument that this is an improper “elements” analysis, El-Mezain
relies on United States v. Ohayon, 483 F.3d 1281, 1293 (11th Cir. 2007). In that case, the court
held that the collateral estoppel analysis focuses on whether a fact, rather than a legal
element, was shared by the offenses in successive prosecutions. Id. The court was addressing
retrial for conspiracy after acquittal of a substantive offense and found that it was improper
merely to compare the legal elements of the two offenses there because, if that were the test,
the court would never reach the question whether there was any factual identity. We see no
conflict with Ohayon in light of our interpretation of Supreme Court precedent in Yeager and
Ashe, as we agree that collateral estoppel requires more than a mere difference in the elements
of the offenses. But rather than mechanically compare the offense elements here, we examine
the entire record, including the charges and the jury instructions on those charges, to decide
whether the jury in the first trial could have founded its verdict on a ground other than the
ground to be foreclosed in the second trial. A defendant’s specific intent is a ground that may
or may not have been necessarily determined by a previous jury. See, e.g., United States v.
Romeo, 114 F.3d 141, 143 (9th Cir. 1997) (examining elements of the acquitted count for
knowing possession with intent to distribute drugs and finding that jury could not have
acquitted without necessarily deciding the “knowing” element); United States v. Vaughn, 80
F.3d 549, 551–53 (D.C. Cir. 1996) (holding that jury’s acquittal on two counts of selling crack
on different dates based on entrapment defense did not necessarily determine defendant’s
criminal intent to make sales on two other occasions).
130
No. 09-10560
purpose of the agreement and joined in it willfully, that is with the intent to
further the unlawful purpose.” We do not agree that the district court’s
reference to the general principles of conspiracy law incorporated a willfulness
element into each conspiracy count.
Although the court’s first instruction gave the general principles of
conspiracy law, its second instruction gave the specific definition to be applied
to the elements of each of the charged conspiracies. As charged, the § 2339B
conspiracy required only knowing conduct, while the IEEPA conspiracy required
conduct that was both knowing and willful. The district court specifically
instructed the jury to refer to the definitions of knowing and willful that it had
previously given for those counts, and we presume that the jury followed those
instructions. See Zafiro, 506 U.S. at 540. Furthermore, when the district court
gives general instructions but then gives conflicting specific instructions, we
have found, reading the charge as a whole, that the specific instructions
adequately guide the jury. See, e.g., Jordan v. Watkins, 681 F.2d 1067, 1076 (5th
Cir. 1982) (“[A]ny prejudice that the general definition could have caused was
eviscerated by the specific instruction that immediately followed.”).
Finally, El-Mezain raises numerous arguments in his reply brief for why
the district court’s analysis of his collateral estoppel argument was erroneous,
most notably that it improperly relied on the deadlocked count 1 to determine
what the jury decided. It is true that consideration of hung counts has no place
in the collateral estoppel analysis when determining what the jury necessarily
decided at the first trial. See Yeager, 129 S. Ct. at 2368. But we need not rely
on the deadlocked count 1, or any inconsistency between the jury’s hanging on
that count and its conviction on other counts, which Yeager forbids. See id. As
already discussed, the defense, the jury charge, and the closing argument, along
with the acquittal in count 11, show that the jury’s verdict on the acquitted
count in the first trial could have been based solely on an issue that was not an
131
No. 09-10560
element of the re-tried count. This is consistent with Yeager.41 Id. at 2367.
Most of El-Mezain’s arguments overlook the fact that it is his burden to establish
that the issue he seeks to foreclose was actually decided at the first trial.
Dowling, 493 U.S. at 350; Brackett, 113 F.3d at 1398. Because we conclude that
he has not met that burden, we reject El-Mezain’s collateral estoppel argument.
2. Collateral estoppel and the exclusion of evidence
El-Mezain next argues that the district court erroneously admitted
evidence that related to the counts on which he was acquitted at the first trial
and also failed to give a limiting instruction. El-Mezain reasons that the
§ 2339B conspiracy charged in count 1 allegedly began in 1997, whereas the
IEEPA conspiracy charged in count 11 began in January 1995 when Hamas was
designated as a SDT. According to El-Mezain, because the jury acquitted him
on count 11 but failed to reach a verdict on count 1, he could not have been a
member of any conspiracy prior to 1997 because the acquittal absolved him of
the only conspiracy that could have existed up to that time. Furthermore, the
IEEPA conspiracy was alleged to have run until the time of the indictment in
2004. El-Mezain argues, therefore, that collateral estoppel should have
precluded evidence against him that concerned actions before 1997, as well as
any other evidence relevant to the IEEPA counts. The challenged evidence at
issue included El-Mezain’s intercepted telephone calls, videotapes in which he
appeared, documentation of his personal financial transactions, and the
Elbarasse and Ashqar documents.
“Even when a subsequent prosecution is not completely barred, this court
has held that collateral estoppel may bar the admission or argumentation of
41
Similarly, although El-Mezain is correct that the district court denied his collateral
estoppel motion based in part on the Fifth Circuit panel decision that the Supreme Court
reversed in Yeager, the district court also specifically held that El-Mezain failed to establish
that the facts necessarily established at the first trial precluded the second trial, a principle
which is in line with Yeager. See 129 S. Ct. at 2367.
132
No. 09-10560
facts necessarily decided in the first trial.” Brackett, 113 F.3d at 1400. Because,
as discussed above in the previous section, the IEEPA conspiracy charged in
count 11 required the Government to prove that El-Mezain acted both knowingly
and willfully, the jury could have acquitted solely on the willfulness element
without necessarily determining that El-Mezain was not a member of a
conspiratorial agreement prior to 1997. Thus, evidence of facts related to El-
Mezain’s participation in an agreement to support Hamas was not precluded by
collateral estoppel because the jury did not necessarily determine those facts
against the Government in the first trial.
Furthermore, collateral estoppel does not bar the introduction of “evidence
of an alleged criminal act, notwithstanding the fact that the defendant
previously has been acquitted of the substantive offense, to prove participation
in a conspiracy to commit the substantive offense.” Id. This is because “[o]vert
acts in furtherance of a conspiracy need not be criminal; therefore, acquittal for
the substantive offense does not bar admission of the same evidence in a
subsequent conspiracy trial.” Id.; United States v. Garza, 754 F.2d 1202,
1209–10 (5th Cir. 1985). In Brackett, we held that the Government was able to
introduce evidence of the defendant’s possession of marijuana, for which he had
been acquitted, as part of the prosecution for conspiracy. Brackett, 113 F.3d at1400–01. We reasoned that the evidence of possession was not barred because
it was relevant to establish the defendant’s voluntary participation in the
conspiracy, but it was not required to prove the essential elements of the
conspiracy offense. Id. at 1401.
The same is true here with respect to the substantive counts. Even though
the jury acquitted El-Mezain of being in the IEEPA conspiracy charged in count
11 that began in 1995, and of substantive counts related to both the count 1 and
count 11 conspiracies, evidence of substantive acts in furtherance of those
conspiracies, including acts from 1995 to 1997 (or earlier), was still relevant to
133
No. 09-10560
whether he joined in the count 1 conspiracy beginning in 1997. That evidence
was not necessarily required as an essential element of the count 1 conspiracy.
See id. at 1400 (“‘Merely because appellants were acquitted of the substantive
. . . charges does not mean that the facts upon which the charges were based
cannot later be used as non-criminal overt acts in furtherance of the conspiracy
to commit the substantive offenses.’”) (citation omitted). The count 1 conspiracy
also listed overt acts different from the specific transactions making up the
substantive counts of the indictment. Therefore, evidence concerning substantive
acts on which El-Mezain was acquitted was not barred by collateral estoppel as
long as it was otherwise admissible. See Dowling, 493 U.S. at 348 (declining to
extend collateral estoppel “to exclude in all circumstances . . . relevant and
probative evidence that is otherwise admissible under the Rules of Evidence
simply because it relates to alleged criminal conduct for which a defendant has
been acquitted”). El-Mezain does not argue that the challenged evidence was not
relevant or probative; he argues only that it was inadmissible because it
predated or coincided with the time frame of the conspiracy for which he was
acquitted. This argument fails to establish that collateral estoppel barred the
evidence.
L. Mistrial and double jeopardy
The defendants next claim that the district court erroneously denied their
motion to dismiss the instant prosecution on double jeopardy grounds because
there was no manifest necessity for a mistrial in the first case. The defendants
reason that the Government induced the mistrial through prosecutorial
misconduct by improperly submitting non-admitted exhibits to the first jury. We
hold that the record shows that all defendants validly agreed to the mistrial and
that there has been no showing that the Government engaged in intentional
misconduct either to induce the defendants’ consent to the mistrial or to avoid
an acquittal that it believed was likely.
134
No. 09-10560
Our review of the denial of a double jeopardy claim following declaration
of a mistrial is plenary. United States v. Campbell, 544 F.3d 577, 581 (5th Cir.
2008). “We review all factual findings underpinning the district court’s
determination for clear error.” Id.Although the Double Jeopardy Clause prohibits a second prosecution
following an acquittal, a “‘retrial is not automatically barred when a criminal
proceeding is terminated without finally resolving the merits of the charges
against the accused.’” Id. at 580 (quoting Arizona v. Washington, 434 U.S. 497,
503 (1978)). The Double Jeopardy Clause will not preclude a defendant from
being retried after the district court declares a mistrial over defense objection if
the mistrial was justified by a “manifest necessity.” Id. at 580–81; United States
v. Palmer, 122 F.3d 215, 218 (5th Cir. 1997). If a defendant consents to a
mistrial, however, the “manifest necessity” standard is inapplicable and double
jeopardy ordinarily will not bar a reprosecution. See Oregon v. Kennedy, 456 U.S.
667, 672 (1982); Palmer, 122 F.3d at 218.
The defendant’s consent to a mistrial may be express or implied through
a failure to object. Palmer, 122 F.3d at 218. “If a defendant does not timely and
explicitly object to a trial court’s sua sponte declaration of mistrial, that
defendant will be held to have impliedly consented to the mistrial and may be
retried in a later proceeding.” Id. The determination of whether a defendant
objected to a mistrial is made on a case-by-case basis, and the critical factor is
whether a defendant’s objection gave the court sufficient notice and opportunity
to resolve the defendant’s concern. United States v. Fisher, 624 F.3d 713, 717
(5th Cir. 2010).
In the instant case, the record shows that all defense counsel consented to
the mistrial either expressly or impliedly. The jury in the first trial of this case
clearly struggled to come to a decision. The jurors had deliberated for nineteen
days and had been given an Allen charge by the district court when they
135
No. 09-10560
indicated that they had reached a partial verdict. The jury acquitted defendant
Abdulqader on all counts; acquitted defendant Odeh on all counts except for
three conspiracy charges, on which it failed to reach a verdict; acquitted
El-Mezain on all counts except for the count 1 conspiracy, on which the jury also
hung; and failed to reach a verdict for the other defendants. The district court
polled the jury on the court’s own motion, and three jurors indicated that they
did not agree with the verdict. After being sent back to continue deliberating,
the jury indicated that further deliberations would not be helpful.
Faced with a partial verdict acquitting some defendants on some counts
and one defendant on all counts, and hoping to preserve the acquittals, defense
counsel for Abdulqader and El-Mezain requested that the district court poll the
jurors a second time to discern whether the jury’s disagreement was over the
acquitted counts or only the undecided counts. The district court agreed to poll
the jurors again about the individual defendants for whom partial verdicts had
been reached. The district judge indicated that he intended to declare a mistrial
as to the defendants for whom no verdict had been reached, and counsel for
Defendants Baker and Elashi expressly agreed to the district court’s procedure.
On re-polling of the jury, one juror again indicated that he did not agree with the
verdict of acquittal as to Abdulqader, and two jurors stated that they did not
agree with the acquittal of Odeh. All jurors agreed with the verdict of acquittal
of El-Mezain except for count 1.
The district court declared a mistrial on all counts for the defendants for
whom the jury was unable to return a valid verdict, i.e., HLF, Baker, Elashi,
Abdulqader, and Odeh. As to El-Mezain, the court declared a mistrial as to
count 1 but accepted the acquittal as to all other counts. The court stated that
the Government had the option of bringing the case again on the mistried
counts. No one lodged any objection.
136
No. 09-10560
We think it clear from the above circumstances that all defendants
consented to the district court’s action. The defendants argue that counsel for
Abdulqader did not consent to a mistrial because she “suggested an alternative
course” after the first jury poll. But the alternative course was the request for
a second poll, which the district court granted. The court declared a mistrial
when the jury indicated its continued disagreement with the verdict, and counsel
for Abdulqader said nothing more. Because there was no objection, and several
defense counsel had already stated their agreement to the mistrial, the consent
of all counsel was either express or implied by their silence. See Palmer, 122
F.3d at 218–19; see also United States v. Nichols, 977 F.2d 972, 974 (5th Cir.
1992) (consent to a mistrial may be implied from the totality of circumstances
surrounding the declaration of the mistrial). The district court so found, and we
see no clear error in that finding.
The defendants contend, nevertheless, that even if they consented to the
mistrial, the consent was invalid because it was induced by Government
misconduct, which they contend was the only reason the mistrial occurred.42 In
order to resolve this issue, some additional facts are necessary. When the case
was submitted to the jury at the first trial, the Government, unbeknownst to the
defendants, included demonstrative and non-admitted exhibits along with the
evidence that was sent to the jury room. This unintended submission included
nineteen exhibits comprised of approximately 100 pages and three videotapes.
During the course of deliberations, the jury sent out a note asking about the
demonstrative exhibits. Unaware that the jury had been inadvertently given
42
We note that the defendants did not properly raise their inducement argument in the
district court, which denied the defendants’ request to file a reply brief in which the argument
was raised for the first time. We would ordinarily review an issue not properly raised in the
district court for plain error only. See United States v. Cooks, 589 F.3d 173, 184 (5th Cir.
2009). Because the district court ruled on the merits of the issue in the alternative, however,
and because we conclude that the defendants’ arguments fail even under the usual clearly
erroneous standard of review, we discuss the issue in full.
137
No. 09-10560
demonstrative exhibits, the district court instructed that all the exhibits that
were in evidence were in the jury room.43 The defense learned of the error only
prior to the second trial while interviewing jurors from the first trial.
Upon discovering this error, the defense moved to dismiss the superseding
indictment on double jeopardy grounds. They submitted an affidavit from the
first jury’s foreperson indicating that there had been disagreement among the
jurors about the demonstrative exhibits and whether the exhibits could be
considered. The defendants argued that had the Government not given those
exhibits to the jury, the jury likely would have acquitted them. They also argued
that the Government acted intentionally to avoid an acquittal, and that the
prosecutors had misrepresented to the court and counsel that it had not sent
improper evidence to the jury. The district court denied the motion, and the
defendants renew their arguments on appeal.
A retrial caused by prosecutorial misconduct may violate double jeopardy
only if “the governmental conduct in question [was] intended to ‘goad’ the
defendant into moving for a mistrial . . . .” Kennedy, 456 U.S. at 676. Gross
negligence by the prosecutor, or even intentional conduct that seriously
prejudices the defense, is insufficient to apply the double jeopardy bar. United
States v. Wharton, 320 F.3d 526, 531–32 (5th Cir. 2003); United States v.
Singleterry, 683 F.2d 122, 123 & n.1 (5th Cir. 1982). Instead, there must be
“‘intent on the part of the prosecutor to subvert the protections afforded by the
Double Jeopardy Clause.’” Wharton, 320 F.3d at 531–32 (emphasis removed)
(quoting Kennedy, 456 U.S. at 675–76); see also Martinez v. Caldwell, 644 F.3d
238, 243 (5th Cir. 2011) (“A prosecutor . . . must specifically act in ‘bad faith’ or
43
The jury’s note stated, in relevant part, “a jury member wants to know if the
demonstrative exhibits are in the jury room. He does not believe that the power points and
some other exhibits are demonstrative and not actual evidence.” With the assent of counsel,
the district court instructed the jury: “The demonstrative exhibits are not in the jury room.
All of the exhibits in evidence are in the jury room.”
138
No. 09-10560
must intend to goad the defendant ‘into requesting a mistrial or to prejudice the
defendant’s prospects for an acquittal.’”) (citation omitted). Under this narrow
standard, the court must examine the “objective facts and circumstances” to
determine the prosecutor’s intent. Kennedy, 456 U.S. at 675.
The defendants contend that the Government’s intent to induce the
mistrial is evident from the prosecution’s silence in the face of the jury’s note
asking about demonstrative exhibits. They posit that the Government was put
on notice that there was a problem with the evidence in the jury room but
assured defense counsel that it had not sent improper exhibits to the jury room.
They contend that had the Government informed the court and counsel that it
had improperly provided non-admitted exhibits to the jury, the court could have
removed those exhibits and given a curative instruction. We are not persuaded.
The defendants do not point to any evidence in the record showing that the
Government affirmatively knew at the time of the juror’s note that improper
exhibits had been submitted. As the district court held, it is just as likely that
the Government believed it had not submitted anything improper to the jury.
Nor do we think that the prosecutor’s silence in the face of the jury’s note proves
the Government’s bad intent. As the district court observed, the same note
failed to cause the court or any of the eight defense counsel to register a concern
on the record.
We may not disturb the district court’s factual finding that the prosecution
did not deliberately submit the non-admitted exhibits to the jury unless that
finding was clearly erroneous. See Singleterry, 683 F.2d at 124–25. The
exhibits that were properly admitted in this case were extensive, comprising
thousands of pages of material in a complicated trial lasting several weeks. It
is entirely plausible that the Government could have mistakenly or negligently,
rather than intentionally, included 100 pages of non-admitted and
demonstrative exhibits in the voluminous matter and then failed to discover the
139
No. 09-10560
fact. See id. at 123 n.1 (holding that even “‘gross negligence’ is clearly not
enough to bar retrial”); United States v. Barcelona, 814 F.2d 165, 168 (5th Cir.
1987) (holding that district court did not clearly err by finding prosecutor’s
failure to disclose information about evidence, resulting in mistrial, was due to
inadvertence). The district court’s finding was not clearly erroneous.
The defendants contend that other circumstances, combined with the
juror’s note, further demonstrated the bad faith of the prosecution. An
individual juror sent a note asking to be removed from the jury. When
questioned by the district court, he expressed frustration with the deliberations
and also made vague references to the evidence.44 The defendants argue that the
Government must have known from the juror’s comments that some jury
44
When interviewed by the district court, the juror stated, in part:
I know the case is based on evidence and testimony. So in the deliberating --
And when somebody give they opinion, facts, it’s just like evidence -- okay. The
things we have in the jury room is evidence. And when you bring up the
evidence, they talk it down. They got their own opinion. It’s like HAMAS. This
is not HAMAS. Show where [sic] me where this is stated it’s HAMAS, and I’m
just going on recollecting of the trial. That’s all I’m going on, and if I need to go
to some evidence, I do it. But it’s like they already got their opinion. They
already got their opinion made up, and I don’t feel like I could give the
defendant justice on that.
He continued:
And you know when the court reporter come in there and that’s when I asked
her again, is this all of this evidence. Yeah. You can’t do this. This is not
evidence. Everything in the boxes, the first day that she came, is all of this
evidence. We had a problem over just that.
****
But then it started getting personal. When you go in there and try to make a
point and they sit up there and say no, where you going to show that up. They
don’t even have a clue where HAMAS started from, because they don’t even
want to hear it. They want to hear nothing about terrorism. They don’t want
to hear that. But when you got three or four that already has their mind made
up, it’s not served.
140
No. 09-10560
members believed they had demonstrative exhibits, and also that there was a
bloc of jurors who favored acquittal. They contend that the Government
therefore knew that an acquittal was likely. We disagree.
The defendants have to show that the Government acted improperly with
the purpose and intent of causing the defense to agree to a mistrial. See
Kennedy, 456 U.S. at 676; see also United States v. Catton, 130 F.3d 805, 807
(7th Cir. 1997) (holding that “a defendant who wants . . . to block a retrial on the
basis of prosecutorial error must show that the prosecutor committed the error
because he thought that otherwise the jury would acquit and he would therefore
be barred from retrying the defendant”). At the time the Government submitted
the case to the jury along with the improper evidence, it could not have known
that there would be an acquittal, and the defendants present no such argument.
Instead, they rely on the Government’s silence after deliberations began and a
juror asked to be dismissed. But that argument is premised on the unsupported
belief that the Government knew the improper exhibits had been sent to the jury
room. Even if we assume that the jury’s notes and comments should have
prompted the Government to investigate the matter further, its failure to do so
was at most negligent. See Singleterry, 683 F.2d at 123 & n.1. There is no
evidence that the Government knew that the jury had improper exhibits in its
possession, and speculation about the prosecutor’s knowledge and intent will not
support a double jeopardy argument. See Nichols, 977 F.2d at 975 (“Because
there is no evidence that the prosecutor intended to terminate the first trial,
there is no double jeopardy bar to Nichols’ retrial.”); see also United States v.
Doyle, 121 F.3d 1078, 1087 (7th Cir. 1997) (holding that defendant’s belief about
the prosecution’s intent was, “at best, mere conjecture and speculation” because
“[t]here is simply no record evidence that unearths the inner-thoughts of the
prosecutors”).
141
No. 09-10560
Moreover, the dismissed juror’s comments, read as a whole, do not
unequivocally show that the Government must have known an acquittal was
likely and that the only way to avoid that result was to remain silent about
submitting the demonstrative exhibits to the jury. During its questioning of the
juror, the district court expressed concern about substituting an alternate juror,
thereby requiring the jury to begin deliberations anew. The dismissed juror
indicated his belief that the deliberations had not progressed very far. He also
indicated that opinions, including his own, were subject to change. When read
as a whole, the juror’s comments do not show that the prosecution necessarily
must have apprehended an acquittal. The district court’s conclusion that the
comments showed, at most, a hung jury and conflict among the jurors was not
clearly erroneous.
The defendants’ double jeopardy argument is based on speculation rather
than objective facts showing that the Government deliberately acted to provoke
a mistrial with the goal of avoiding an acquittal. We therefore affirm the district
court’s denial of the motion to dismiss.
M. Challenge to FISA applications and intercepts
As noted above, the Government conducted widespread surveillance of the
defendants that was authorized by court orders issued pursuant to FISA, 50
U.S.C. § 1801 et seq. At trial, the prosecution relied on recorded evidence
captured during the surveillance. The Government’s FISA applications,
affidavits related to the warrant applications, the court orders regarding the
applications, and much of the information obtained from the surveillance have
been classified.45 The defendants raise two challenges relating to FISA, arguing
that the district court erred by (1) refusing to compel the production of the FISA
45
Because of the classified and sensitive nature of the materials at issue, this court has
conducted an in camera review of the relevant materials, but the opinion does not reveal the
classified contents of those documents.
142
No. 09-10560
warrant applications and court orders, and (2) refusing to suppress the FISA
intercepts. We find no merit in either argument.
1. Disclosure of FISA applications and orders
FISA establishes procedures for the Government, acting through the
Attorney General, to obtain a judicial warrant for electronic surveillance in the
United States “to acquire foreign intelligence information.” 50 U.S.C.
§ 1802(a)(1). Foreign intelligence information includes, inter alia, information
relating to “the ability of the United States to protect against . . . sabotage,
international terrorism, or . . . clandestine intelligence activities by . . . a foreign
power or by an agent of a foreign power[.]”46 § 1801(e). With limited exceptions
not relevant here, the Government may not conduct electronic surveillance
without a court-authorized warrant. Application for a FISA warrant is made ex
parte to the Foreign Intelligence Surveillance Court (“FISC”), which is currently
comprised of eleven district court judges designated by the Chief Justice of the
46
The full text of the statute defines “foreign intelligence information” to mean:
(1) information that relates to, and if concerning a United States person is
necessary to, the ability of the United States to protect against–
(A) actual or potential attack or other grave hostile acts of a foreign power or an
agent of a foreign power;
(B) sabotage, international terrorism, or the international proliferation of
weapons of mass destruction by a foreign power or an agent of a foreign power;
or
(C) clandestine intelligence activities by an intelligence service or network of a
foreign power or by an agent of a foreign power; or
(2) information with respect to a foreign power or foreign territory that relates
to, and if concerning a United States person is necessary to–
(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States.
50 U.S.C. § 1801(e).
143
No. 09-10560
United States.47 § 1803(a)(1). The FISC’s rulings are subject to review by the
Foreign Intelligence Surveillance Court of Review (“FISCR”), which consists of
three judges also designated by the Chief Justice. § 1803(b).
To obtain FISC approval for surveillance, the Government must show,
inter alia, probable cause to believe that “the target of the electronic surveillance
is a foreign power or an agent of a foreign power” and that the place of
surveillance “is being used, or is about to be used, by a foreign power or an agent
of a foreign power.” § 1805(a)(2)(A), (B). This probable cause standard is
different from the standard in the typical criminal case because, rather than
focusing on probable cause to believe that a person has committed a crime, the
FISA standard focuses on the status of the target as a foreign power or an agent
of a foreign power. A “foreign power” includes “a group engaged in international
terrorism or activities in preparation therefor.”48 § 1801(a)(4); see also United
47
Prior to amendments to FISA in 2001, the FISC was comprised of seven judges.
48
The statute fully defines a “foreign power” to be:
(1) a foreign government or any component thereof, whether or not recognized
by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United
States persons;
(3) an entity that is openly acknowledged by a foreign government or
governments to be directed and controlled by such foreign government or
governments;
(4) a group engaged in international terrorism or activities in preparation
therefor;
(5) a foreign-based political organization, not substantially composed of United
States persons;
(6) an entity that is directed and controlled by a foreign government or
governments; or
(7) an entity not substantially composed of United States persons that is
engaged in the international proliferation of weapons of mass destruction.
144
No. 09-10560
States v. Marzook, 435 F. Supp. 2d 778, 780 (N.D. Ill. 2006) (noting that Hamas
is a foreign power). An “agent of a foreign power” includes any person who
“knowingly aids or abets any person” engaged in specified activity, including
intelligence gathering, sabotage, or international terrorism.49 § 1801(b)(2)(E).
When the Government intends to use information obtained from electronic
surveillance authorized under FISA, it must give notice to the person against
whom it intends to use that information and to the court where the information
will be used. § 1806(c). The aggrieved person50 may seek discovery of the
“applications or orders or other materials relating to electronic surveillance,” and
he may also seek to suppress evidence obtained from the surveillance if “the
50 U.S.C. § 1801(a).
49
An “agent of a foreign power” is defined to include any person who:
(A) knowingly engages in clandestine intelligence gathering activities for or on
behalf of a foreign power, which activities involve or may involve a violation of
the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of a foreign
power, knowingly engages in any other clandestine intelligence activities for or
on behalf of such foreign power, which activities involve or are about to involve
a violation of the criminal statutes of the United States;
(C) knowingly engages in sabotage or international terrorism, or activities that
are in preparation therefor, for or on behalf of a foreign power;
(D) knowingly enters the United States under a false or fraudulent identity for
or on behalf of a foreign power or, while in the United States, knowingly
assumes a false or fraudulent identity for or on behalf of a foreign power; or
(E) knowingly aids or abets any person in the conduct of activities described in
subparagraph (A), (B), or (C) or knowingly conspires with any person to engage
in activities described in subparagraph (A), (B), or (C).
50 U.S.C. § 1801(b)(2).
50
“‘Aggrieved person’ means a person who is the target of an electronic surveillance or
any other person whose communications or activities were subject to electronic surveillance.”
50 U.S.C. § 1801(k).
145
No. 09-10560
information was unlawfully acquired” or if “the surveillance was not made in
conformity with an order of authorization or approval.” § 1806(e), (f). If,
however, “the Attorney General files an affidavit under oath that disclosure or
an adversary hearing would harm the national security of the United States,”
the district court must “review in camera and ex parte the application, order,
and such other materials relating to the surveillance as may be necessary to
determine whether the surveillance of the aggrieved person was lawfully
authorized and conducted.” § 1806(f).
In the instant case, the Government gave the defendants notice that it
intended to use at trial information obtained from surveillance approved under
FISA. During the course of discovery in the first trial, the Government
inadvertently disclosed some of the FISA materials to the defendants. The
district court, upon motion by the Government, ordered the defendants to return
the non-discoverable material to the prosecution.
The defendants subsequently moved to compel production of the FISA
applications and to suppress the evidence obtained from the surveillance, and
the Attorney General filed the requisite national security notice to maintain the
confidentiality of the FISA materials. The district court refused to order
disclosure and denied the suppression motion after conducting an in camera and
ex parte review of the documents. Prior to the second trial, the defendants
renewed their request for disclosure, which was denied.
On appeal, the defendants argue that the district court erred by denying
their motion for production of the FISA materials. They contend that, pursuant
to the FISA statute and due process, disclosure and the participation of defense
counsel were necessary in order for the district court to make an accurate
determination of the lawfulness of the surveillance. The defendants specifically
contest whether the FISA warrant applications established probable cause to
believe that the targets of the investigation were “agents of a foreign power.”
146
No. 09-10560
They assert their belief that the applications did not meet the probable cause
standard because of material misstatements and omissions in the applications.
We review for an abuse of discretion the district court’s order denying disclosure
of applications and other materials related to FISA surveillance. See United
States v. Damrah, 412 F.3d 618, 624 (6th Cir. 2005).
In the course of an in camera review of FISA materials, the district court
has discretion to disclose the information to the aggrieved person but “only
where such disclosure is necessary to make an accurate determination of the
legality of the surveillance.” 50 U.S.C. § 1806(f) (emphasis added). When the
district court “determines that the surveillance was lawfully authorized and
conducted, it shall deny the motion of the aggrieved person except to the extent
that due process requires discovery or disclosure.” § 1806(g).
In a very well-reasoned opinion, the district court here closely considered
the defendants’ arguments for disclosure and determined that it was capable of
reviewing the lawfulness of the FISA surveillance without assistance from
defense counsel. The court concluded after an extensive in camera review that
the FISA surveillance was lawful. The court reasoned as follows:
After thoroughly reviewing each of the FISA applications at
issue in this prosecution, accompanying affidavits, the FISC’s orders
and additional materials submitted by the government, the court
finds that it does not need the assistance of defense counsel to make
an accurate determination of the legality of the surveillance. This
conclusion is not unusual among courts that have faced this
situation; indeed, the parties agree that no court has ever ordered
that FISA materials be disclosed or that an adversarial hearing be
conducted to assist the court in determining the legality of FISA
surveillance. . . .
Although the defendants argue fervently that this is a unique
case because the government made widespread intentional and
reckless misrepresentations to obtain FISA warrants from the FISC,
. . . evidence from the government has shown that the alleged
irregularities have been greatly exaggerated by the defendants[.] . . .
147
No. 09-10560
The errors in the FISA applications identified by the defendants and
documented by the government are not pervasive; nor did the errors
materially alter the evidence supporting the FISA warrants
involving the defendants. . . .
The court reviewed each of the identified errors and found
them to be typographical or clerical in nature. Although the
government should have exercised greater care in drafting and
editing its applications for FISA warrants before presenting those
applications to the FISC, the government acknowledged the errors
it made and provided corrected information to the FISC more than
six years ago when it discovered the errors. . . . In addition, the FBI
conducted an internal investigation of the special agent whom the
defendants allege “was guilty of numerous and repeated falsehoods
and inaccuracies in the FISA applications in this case,” . . . and
found that allegations of “investigative dereliction” were meritless[.]
. . . The court reaches the same conclusion.
Because the errors identified by the defendants did not
materially alter the evidence outlined in the FISA applications and
because the errors were not pervasive enough to confuse the court
as to the quantity or quality of the evidence described in the
applications, the court does not believe that disclosing the
applications and related materials to defense counsel would assist
the court in making an accurate determination of the legality of the
surveillance. Consequently, it would be inappropriate for the court
to provide defense counsel with access to the documents under the
terms of 50 U.S.C. § 1806(f).
We have undertaken our own independent in camera review of the FISA
materials and conclude that the district court was correct. We agree fully with
the district court’s reasoning and adopt it as our own. “[D]isclosure of FISA
materials is the exception and ex parte, in camera determination is the rule.”
United States v. Abu-Jihaad, 630 F.3d 102, 129 (2d Cir. 2010) (internal
quotation marks and citation omitted). We see no abuse of discretion by the
district court’s refusal to order disclosure of the FISA applications and other
material pursuant to § 1806(f).
148
No. 09-10560
Relying on the balancing test of Mathews v. Eldridge, 424 U.S. 319, 335
(1976), the defendants also argue that due process required disclosure because
their interest in obtaining the FISA materials outweighed the Government’s
interest in maintaining its secrecy. Assuming without deciding that the
Mathews balancing test is applicable here, but see Damrah, 412 F.3d at 624(stating that defendant’s “reliance on Mathews is misplaced . . . because FISA’s
requirement that the district court conduct an ex parte, in camera review of
FISA materials does not deprive a defendant of due process”), we conclude that
there was no due process violation.
The Mathews balancing test requires the court to consider (1) the
defendants’ private interest in disclosure of the FISA materials; (2) the risk that
defendants will be erroneously deprived of their right to the materials, and the
value of additional or substitute procedural safeguards; and (3) the
Government’s interest in preventing disclosure. See Mathews, 424 U.S. at 335.
The defendants argue that they have a substantial interest in an accurate
determination of their claim that the Government’s surveillance violated their
rights, and that the district court’s in camera review of the materials without
counsel’s input carried a high risk of an erroneous decision. We agree with the
district court’s assessment of this issue, however, that the in camera and ex parte
review by the district court adequately ensured that the defendants’ statutory
and constitutional rights were not violated. See United States v. Belfield, 692
F.2d 141, 149 n.38 (D.C. Cir. 1982) (disclosure of FISA materials “will not be
required when the task is such that in camera procedures will adequately
safeguard the ‘aggrieved party’s’ constitutional rights”). Numerous courts have
held that FISA’s in camera and ex parte procedures are adequate and withstand
constitutional scrutiny. See, e.g., Damrah, 412 F.3d at 624–25; United States v.
Isa, 923 F.2d 1300, 1306–07 (8th Cir. 1991); United States v. Ott, 827 F.2d 473,
476–77 (9th Cir. 1987); Belfield, 692 F.2d at 148–49.
149
No. 09-10560
Furthermore, we also agree with the district court that, as a matter of
national security, the Government has a substantial interest in maintaining the
secrecy of the materials. This interest extends not only to the contents of the
materials but also to the appearance of confidentiality in the operation of the
intelligence services. See, e.g., C.I.A. v. Sims, 471 U.S. 159, 175 (1985) (“If
potentially valuable intelligence sources come to think that the Agency will be
unable to maintain the confidentiality of its relationship to them, many could
well refuse to supply information to the Agency in the first place.”). We are
unpersuaded by the defendants’ argument that the Government’s interest is
diminished because defense counsel possess security clearance to review
classified material. “Congress has a legitimate interest in authorizing the
Attorney General to invoke procedures designed to ensure that sensitive security
information is not unnecessarily disseminated to anyone not involved in the
surveillance operation in question, whether or not she happens for unrelated
reasons to enjoy security clearance.” Ott, 827 F.2d at 477. Furthermore, as
noted by the district court, defense counsel do not possess the security clearance
to review all of the FISA materials in this case, some of which is classified above
counsel’s clearance level.
Our conclusion that the defendants’ due process rights have not been
violated is also buttressed by our own in camera consideration of the FISA
materials. Based on that review, we are convinced that the district court
properly weighed the respective interests of the defendants and the Government
along with the sensitivity of the materials. We conclude, therefore, that due
process did not require disclosure of the FISA materials, and that the district
court properly denied the defendants’ motion to compel disclosure.
150
No. 09-10560
2. Suppression of FISA intercepts
The defendants further argue that the district court erroneously denied
their motion to suppress the evidence obtained from the FISA surveillance.
First, the defendants argue that the FISA surveillance was improper because the
“primary purpose” of the intercepts was a criminal investigation rather than the
gathering of foreign intelligence. Second, they contend that the Government
failed to establish probable cause that the target of the FISA warrant was “a
foreign power or an agent of a foreign power.” Finally, the defendants contend
that the district court should have granted them an evidentiary hearing under
Franks v. Delaware, 438 U.S. 154 (1978), at which they could challenge the
veracity of the information in the FISA warrant applications. We are
unpersuaded by these arguments.
We review de novo the district court’s ruling on the propriety of orders
from the FISA court. United States v. Dumeisi, 424 F.3d 566, 578 (7th Cir.
2005). “In considering challenges to FISA Court orders, however, ‘the
representations and certifications submitted in support of an application for
FISA surveillance should be presumed valid’ by a reviewing court absent a
showing sufficient to trigger a Franks hearing.” Abu-Jihaad, 630 F.3d at 130(citation omitted).
The defendants’ argument that the surveillance was unlawful because the
“primary purpose” was a criminal investigation rather than foreign intelligence
is misplaced because the test that they advocate is inapplicable. The FISA
surveillance in this case began approximately in 1994 and was therefore
governed by the pre-amended version of FISA. “As originally enacted [in 1978],
FISA required a high-ranking member of the executive branch to certify that ‘the
purpose’ for which a warrant was being sought was to obtain ‘foreign intelligence
information.’” Id. at 119 (quoting 50 U.S.C. § 1804(a)(7)(B) (Supp. V 1981)).
Some courts interpreted this provision of FISA as requiring “that foreign
151
No. 09-10560
intelligence information be ‘the primary objective of the surveillance.’” Id.(quoting United States v. Duggan, 743 F.2d 59, 77 (2d Cir. 1984)); see also United
States v. Johnson, 952 F.2d 565, 572 (1st Cir. 1991) (“Although evidence
obtained under FISA subsequently may be used in criminal prosecutions, . . . the
investigation of criminal activity cannot be the primary purpose of the
surveillance. The act is not to be used as an end-run around the Fourth
Amendment’s prohibition of warrantless searches.”) (citations omitted). Those
courts reasoned that the “primary purpose” certification distinguished foreign
intelligence gathering from ordinary criminal cases, where unlike FISA, the
Fourth Amendment requires probable cause to believe a crime has been
committed before the Government may invade individual privacy interests. See
United States v. Truong Dinh Hung, 629 F.2d 908, 915 (4th Cir. 1980).
In 2001, Congress amended FISA when it passed the PATRIOT Act. See
Pub. L. No. 107-56, 115 Stat. 271 (2001). Among other things, the amendments
authorized FISA surveillance when the Government certifies that foreign
intelligence gathering is “a significant purpose” rather than “the purpose.” Id.§ 218, 115 Stat. at 291. By these amendments “Congress indicated that it did
not, in fact, require foreign intelligence gathering to be the primary purpose of
the requested surveillance to obtain a FISA warrant.” Abu-Jihaad, 630 F.3d at
119.
The precise question at issue here, whether the pre-amended version of
FISA required that the primary purpose of surveillance be gathering foreign
intelligence rather than gathering information for a criminal investigation, has
been thoroughly addressed by the Foreign Intelligence Surveillance Court of
Review. See In re Sealed Case, 310 F.3d 717 (FISCR 2002). After an exhaustive
analysis of the statutory text and legislative history, as well as circuit court
opinions that had construed FISA to require a primary purpose test, the FISCR
held in In re Sealed Case that there had never been a primary purpose
152
No. 09-10560
requirement. Id. at 723–27. The court reasoned that, because the statute’s
definition of “foreign intelligence information” necessarily included evidence of
crimes, such as espionage, sabotage, and terrorism, it was “virtually impossible
to read the 1978 FISA to exclude from its purpose the prosecution of foreign
intelligence crimes, most importantly because, as we have noted, the definition
of an agent of a foreign power—if he or she is a U.S. person—is grounded on
criminal conduct.” Id. at 723. As originally enacted, the court held, FISA had
not “even contemplated that the FISA court would inquire into the government’s
purpose in seeking foreign intelligence information.” Id. The court therefore
concluded that “the FISA as passed by Congress in 1978 clearly did not preclude
or limit the government’s use or proposed use of foreign intelligence information,
which included evidence of certain kinds of criminal activity, in a criminal
prosecution.” Id. at 727.
In light of the above, the defendants’ argument that the FISA surveillance
was subject to suppression because its primary purpose was a criminal
investigation, is unavailing. Like the district court, we need not, and do not,
decide that the primary purpose of the surveillance here was a criminal
investigation. Instead, we hold that the defendants’ argument for application
of a primary purpose test is incorrect.
Similarly, we reject the defendants’ argument that the FISA warrant
applications did not establish the requisite probable cause in this case. Upon
careful in camera review of the challenged FISA orders and applications, and the
classified materials in support of the applications, we conclude that the
Government demonstrated the requirements for probable cause, including the
belief that the targets of the surveillance were agents of a foreign power and that
the place of surveillance was being used, or was about to be used, by an agent of
a foreign power. See 50 U.S.C. § 1804(a)(3).
153
No. 09-10560
For the same reasons, the defendants have also failed to show a basis for
a Franks hearing. A defendant, upon a proper preliminary showing, may obtain
an evidentiary hearing to challenge the truthfulness of statements made in an
affidavit supporting a warrant. Franks, 438 U.S. at 155–56. A defendant is
entitled to a Franks hearing if he shows “that (1) allegations in a supporting
affidavit were deliberate falsehoods or made with a reckless disregard for the
truth, and (2) the remaining portion of the affidavit is not sufficient to support
a finding of probable cause.” United States v. Brown, 298 F.3d 392, 395 (5th Cir.
2002). We find no basis to conclude that the statements relied upon by the
defendants were made with reckless disregard for the truth. Nor do we find that
the statements were necessary to the finding of probable cause. We agree with
the district court’s conclusion that probable cause was satisfied even absent the
erroneous statements. We therefore affirm the district court’s denial of the
suppression motion.
N. Sentencing
Next, we consider two sentencing issues. The defendants contend that (1)
the district court erroneously calculated their offense levels under the
Sentencing Guidelines by applying an enhancement under U.S.S.G. § 3A1.4
because their crimes involved terrorism, and (2) the district court erroneously
calculated the value of funds involved in the money laundering offenses.
We review the district court’s interpretation and application of the
Sentencing Guidelines de novo and its factual findings for clear error. United
States v. Lige, 635 F.3d 668, 670 (5th Cir. 2011). A factual finding will be upheld
“if it is plausible in the light of the entire record.” United States v. Rubio, 629
F.3d 490, 492 (5th Cir. 2010).
1. Terrorism adjustment
The presentence report (“PSR”) for each of the individual defendants in
this case applied a 12-level sentencing enhancement pursuant to § 3A1.4 of the
154
No. 09-10560
2002 version of the Sentencing Guidelines. Section 3A1.4 provides for an offense
level enhancement and an automatic increase to criminal history category VI
“[i]f the offense is a felony that involved, or was intended to promote, a federal
crime of terrorism.” § 3A1.4(a). The application notes cross-reference 18 U.S.C.
§ 2332b(g)(5) for the definition of a “federal crime of terrorism.” Id., cmt. (n.1).
A “federal crime of terrorism” is defined as an offense that “(A) is calculated to
influence or affect the conduct of government by intimidation or coercion, or to
retaliate against government conduct;” and “(B) is a violation of [any of a list of
specific statutes].” § 2332b(g)(5).
On appeal, the defendants do not contest that they were convicted of
offenses for which the enhancement is applicable, as required by the second
prong of the definition of a federal crime of terrorism. The defendants challenge
only the application of the first prong of the definition, which requires that their
offenses were “calculated to influence or affect the conduct of government by
intimidation or coercion.” They argue that there was no evidence that they acted
with the requisite intent.
The probation department applied the terrorism enhancement in the PSRs
because “HLF was involved in sending material support to a SDT in order to rid
Palestine of the Jewish people through violent jihad, HAMAS’ mission. Since
the offense is a felony that was intended to promote a federal crime of terrorism
12 levels are applied.” The defendants objected in the district court that the
enhancement did not apply because the Government failed to prove that they
acted with the intent to influence or affect the conduct of government. In
overruling the objection, the district court found that the evidence established
that HLF’s purpose was to support Hamas as a fundraising arm, and that
videotapes, wiretaps, and seized documents interlinked the defendants, HLF,
and Hamas, and demonstrated the defendants’ support of Hamas’s mission of
terrorism. We conclude that the district court did not clearly err. See United
155
No. 09-10560
States v. Harris, 434 F.3d 767, 772–73 (5th Cir. 2005) (reviewing the “influencing
government” prong of § 3A1.4 for clear error).
As pointed out by the Government, the trial was replete with evidence to
satisfy application of the terrorism enhancement because of the defendants’
intent to support Hamas. The Hamas charter clearly delineated the goal of
meeting the Palestinian/Israeli conflict with violent jihad and the rejection of
peace efforts and compromise solutions. The defendants knew that they were
supporting Hamas, as there was voluminous evidence showing their close ties
to the Hamas movement. The evidence of statements made by the defendants
at the Philadelphia meeting and in wire intercepts throughout the course of the
investigation demonstrated the defendants’ support for Hamas’s goal of
disrupting the Oslo accords and the peace process, as well as their agreement
with Hamas’s goals of fighting Israel. To the extent that the defendants
knowingly assisted Hamas, their actions benefitted Hamas’s terrorist goals and
were calculated to promote a terrorist crime that influenced government. See
United States v. Jayyousi, __ F.3d __, No. 08-10494, 2011 WL 4346322, at *26–27
(11th Cir. 2011) (holding that terrorism enhancement under § 3A1.4 applies
when purpose of defendants’ activity is calculated to promote a terrorism crime
regardless of defendants’ personal motivations); United States v. Awan, 607 F.3d
306, 316–18 (2d Cir. 2010) (holding that for § 3A1.4 enhancement the
Government need not show that the defendant was personally motivated to
influence government if it shows that he intended to promote a crime calculated
to have such an effect).
The defendants’ reliance on United States v. Chandia, 514 F.3d 365,
375–76 (4th Cir. 2008), in support of their argument against the terrorism
enhancement is unavailing. In that case, the Fourth Circuit reversed a § 3A1.4
enhancement for a defendant convicted of providing material support to a
terrorist organization because the PSR provided no explanation for the
156
No. 09-10560
adjustment, the district court made no factual findings to justify its application,
and the acts underlying the conviction were not violent terrorist acts. See id.
In the instant case, although the defendants were not convicted of underlying
terrorist acts, the PSRs adequately explained the basis for the enhancement and
the district court made explicit factual findings. In light of the evidence showing
the ties between the defendants and Hamas and their support of Hamas through
HLF, the district court’s finding that the defendants intended to influence
government through their actions was plausible and not clearly erroneous.
2. Value of laundered funds
The individual defendants’ PSRs calculated the total amount of the funds
laundered from the money laundering offenses to be approximately $16.6
million. The defendants argue on appeal that this determination was incorrect
because that amount “represents every penny HLF wired out of the country
between 1995 and 2001, regardless of the destination and purpose.” The
defendants assert that some portion of the funds was sent to places other than
the West Bank and Gaza and served legitimate charitable needs. According to
the defendants, the amount of funds laundered should have included, at most,
funds sent only to the West Bank and Gaza and the zakat committees that were
alleged in the indictment as being controlled by Hamas. We find no merit in this
argument.
First, in their one-paragraph discussion, the defendants cite no authority
and do not explain how the allegedly erroneous calculation of the laundered
funds affected their guidelines ranges or sentences. The issue is therefore
deemed abandoned due to inadequate briefing. See United States v. Reagan, 596
F.3d 251, 254–55 (5th Cir. 2010) (failure to offer further argument or
explanation is a failure to brief and constitutes a waiver).
Second, even if we consider the issue, it is clear from the PSRs that the
amount of laundered funds was not used to calculate the defendants’ offense
157
No. 09-10560
levels and did not factor into the guidelines computations. The guideline for
money laundering directs the probation office to apply the base offense level for
the underlying offense. See U.S.S.G. § 2S1.1(a)(1). As so directed, the PSRs in
this case applied the offense level for the offense of providing material support
to a foreign terrorist organization under § 2M5.3. The PSRs made no
adjustments to the offense level based on the amount of money laundered. The
probation officer noted in response to the defendants’ objection in the district
court that the only impact that a specific dollar amount of laundered funds
could have is on the maximum guideline fine range. However, any potential
error is harmless because the district court did not impose a fine on any of the
defendants.51 See, e.g., United States v. Johnson, 467 F.3d 559, 564 (6th Cir.
2006) (holding that an error is harmless if the Government shows with certainty
that an error at sentencing did not cause the defendant to receive a more severe
sentence).
Finally, the PSR determined that HLF’s provision of some funds to
legitimate charitable organizations helped to hide its true agenda of supporting
Hamas. The district court agreed with the PSR that even if some of the money
sent out of the country was for some legitimate purpose, the sole purpose of HLF
was to provide financial support for Hamas, and therefore the entire amount was
properly included as laundered funds. The district court was entitled to rely on
the PSR, see United States v. Rodriguez, 602 F.3d 346, 363 (5th Cir. 2010)
(holding that the district court may rely on the PSR where it is contradicted only
51
The district court did order that the defendants were subject to a forfeiture of
approximately $12 million, but no defendant has briefed the forfeiture order or explained how
it is related to the calculation of the laundered funds or to the district court’s alleged error in
applying the sentencing guidelines. In any event, the forfeiture order was based on the charge
in the indictment and the corresponding finding by the jury’s special verdict that the
defendants were subject to a forfeiture of that amount, which represents a portion of the
monies that the jury found the defendants sent outside the United States for the purpose of
assisting a designated terrorist organization.
158
No. 09-10560
by the defendant’s objections), and its finding was not clearly erroneous. The
defendants’ challenge to their sentences is therefore rejected.
O. Appeals of HLF and Nancy Hollander
We next address the separate appeals of HLF and Nancy Hollander. HLF
contends that its Sixth Amendment right to counsel was violated because it was
convicted without representation at trial. Hollander contends that the district
court, in deciding issues related to HLF’s representation, improperly sanctioned
her for professional misconduct. Because the issues in each appeal derive from
a common factual background, we first set forth additional facts necessary for
our decision before turning to each argument. As we explain, we dismiss both
appeals because we conclude that we lack appellate jurisdiction.
1. Background
As noted above, the case against HLF began with an indictment of all
defendants in July 2004. On September 7, 2004, Attorney Nancy Hollander, of
the law firm Freedman Boyd Daniels Hollander Goldberg & Cline, P.A.
(“Freedman Boyd”),52 wrote a letter to OFAC, inquiring whether Freedman Boyd
could represent HLF pro bono in the criminal case. In the letter, Hollander
stated, “A corporation cannot appear pro se; it must appear only through counsel.
HLF clearly has a Sixth Amendment right to counsel; therefore, any conviction
against it, including any forfeiture of the frozen funds, will likely be reversed if
it is forced to trial without counsel.” (Citations omitted). Hollander sent copies
of the letter to the district court, government counsel, and defense counsel.
OFAC responded that Freedman Boyd was authorized to represent HLF pro
bono, but that no blocked funds could be used to pay for the representation.
Freedman Boyd agreed to represent HLF pro bono and entered an appearance
52
The current name of the law firm is Freedman Boyd Hollander Goldberg Ives &
Duncan, P.A.
159
No. 09-10560
on HLF’s behalf. Freedman Boyd also filed an entry of appearance on behalf of
individual Defendant Baker in September 2004.
At a July 2006 status conference, the district court and the parties
discussed the potential conflict of interest arising from Freedman Boyd’s joint
representation of HLF and Baker. Hollander stated that she would obtain
conflict waivers from both parties. She also stated, “The other possibility is that
we will stop representing [HLF] and it simply won’t have a representative in this
lawsuit. But I think we can resolve this.” On September 29, 2006, Freedman
Boyd filed with the court Baker’s and HLF’s written waivers of any potential or
actual conflict of interest. Defendant Elashi, who was the HLF Board Chairman,
signed the conflict waiver on behalf of HLF.
The issue of Freedman Boyd’s conflict of interest was brought up again
just before the start of the first trial. At a hearing on July 13, 2007, Teresa
Duncan, another attorney at Freedman Boyd, stated that she represented both
Baker and HLF. The district court became concerned about the potential conflict
of interest and asked whether, pursuant to Federal Rule of Criminal Procedure
44, the defendants understood the risks to joint representation. Duncan replied
that Baker and HLF had signed conflict waivers and that she was satisfied that
the defendants understood the hazards involved in joint representation.
On July 17, 2007, the second day of voir dire, the issue of Freedman Boyd’s
conflict of interest arose yet again. The Government noted that the court had
not yet conducted a Rule 44 oral colloquy with the defendants regarding their
waiver of a conflict. District Judge Fish agreed that he should examine each of
the defendants pursuant to Rule 44, but he noted that he was not sure whether
HLF had a “natural person representative” able to speak on HLF’s behalf. The
Government told the court that Elashi had signed the conflict waiver, but the
Government also noted that this waiver might not be valid because Elashi is also
a defendant in the case. Elashi’s counsel, John Cline, asked the court for a night
160
No. 09-10560
to think about the matter, and the court agreed to discuss the issue the following
morning.
The next day, Cline told the court that “we don’t know either of the
current status of [HLF], whether it exists even as an entity or Mr. Elashi’s
status, if it does exist.” Therefore, Cline stated that Elashi “cannot speak for the
Holy Land Foundation” regarding a waiver of conflict. The court responded, “I
thought we had [HLF] as a represented defendant in this case; that is,
represented by counsel. But I’m inferring from what has been said that there
is no natural person as the representative of [HLF] who would be the client for
the attorney who’s representing [HLF].” The court then stated that it would
consider the issue further.
On July 20, 2007, the fifth day of voir dire, the court again addressed the
issue of Freedman Boyd’s representation of HLF. Hollander stated that “if there
is no one here to represent Holy Land[, and] since we don’t know exactly what
its status is[,] [Freedman Boyd] can’t represent Holy Land.” Hollander
explained that Freedman Boyd shared the Government’s concern about the
validity of the HLF conflict waiver and that there was no HLF representative to
answer the court’s questions during a Rule 44 colloquy. Therefore, she
concluded that Freedman Boyd “can’t represent Holy Land under those
circumstances.” The Government responded that “[w]ith regard to Holy Land
Foundation, I don’t know what we do. Maybe remain unrepresented for the
trial.” Hollander then stated that Freedman Boyd “will withdraw from
representing Holy Land at this time. Ms. Duncan and I will continue to
represent Mr. Baker.” The Government did not object to Freedman Boyd’s
withdrawal, and the court implicitly accepted Hollander’s withdrawal. The court
moved on to discussing how to introduce the various defense attorneys to the
jury and stated, “So I guess on Holy Land, I can simply say that it is
161
No. 09-10560
unrepresented.” The trial proceeded with HLF being unrepresented by counsel,
and the trial ended in a mistrial.
On September 22, 2008, the first day of the second trial before District
Judge Solis, the issue of HLF’s representation arose again. The Government
told the court “that the Holy Land Foundation Corporation is a Defendant and
that there will be evidence in that regard.” The Government went on to state
that HLF “has no employees and no officers and so there is no one to represent
it, but it is an essential part of this lawsuit because of the forfeiture provisions
and the funds that are being held subject to being forfeited.” Judge Solis entered
a plea of not guilty on behalf of HLF. During the second trial, no counsel for
HLF made an opening statement, examined witnesses, or gave a closing
statement.
The jury found HLF guilty on all counts. On May 27, 2009, HLF was
sentenced without defense counsel. The court ordered that HLF “be placed on
a one-year supervised release” and that all of HLF’s frozen assets, including its
bank accounts, were forfeited. The court also entered a money judgment in the
amount of $12,400,000.
On June 5, 2009, Attorney Ranjana Natarajan, Director of the National
Security Clinic at the University of Texas School of Law, filed a notice of
appearance and a notice of appeal on behalf of HLF. Natarajan had no prior
connection to the case. The Government filed a motion to strike both the notice
of appearance and the notice of appeal on the ground that HLF had not
authorized Natarajan to represent HLF. Natarajan responded in part that the
district court had been divested of jurisdiction. The Government then filed with
this court a motion for a limited remand so that the district court could make
findings regarding Natarajan’s authority to represent HLF on appeal. We
entered a limited remand order for the district court to address “Ms. Natarajan’s
162
No. 09-10560
authority to represent HLF, whether HLF was represented at trial, and the
corporate status of HLF at relevant times.”
On January 12, 2010, the district court conducted an evidentiary hearing,
in which the court heard argument from Natarajan and the Government and
took testimony from Hollander and Cline, among others. The district court
subsequently issued an Order (the “Order”), in which the court made its
determinations regarding the questions presented in the remand.
Regarding the issue of HLF’s representation, the district court found that
Freedman Boyd represented Baker and HLF from September 2004 until July 20,
2007, and that this joint representation did not violate the defendants’ Sixth
Amendment right to conflict-free counsel. The court explained that there was
no potential or actual conflict of interest, because the defendants’ “merger of
interests and identities was so clear and pronounced” that “[t]heir defenses had
to be one and the same.” Next, the court held that Freedman Boyd effectively
withdrew from representing HLF on July 20, 2007, when Hollander stated to
Judge Fish that “[w]e will withdraw from representing Holy Land at this time.”
The court explained that “[t]he Government acquiesced,” “[n]o one objected to the
withdrawal,” and “[t]he Court implicitly accepted the withdrawal.”
However, the district court went on to explain in the Order that, during
the second trial, “[n]o one informed this Court that Freedman Boyd no longer
represented HLF,” and “[n]othing said or done during the second trial alerted
the Court to the fact that HLF did not have legal representation.” The court
stated, “The only party with certain knowledge of the likely effect of this
withdrawal was Ms. Hollander.” The Order then stated:
This Court requires attorneys in criminal cases to abide by certain
standards of conduct, including owing duties of candor and clarity
to the judiciary. . . . Ms. Hollander’s failure to disclose to Judge Fish
the potential effect of her firm’s withdrawal before the first trial and
her failure to disclose to the undersigned the potential effect of HLF
being unrepresented during the second trial showed a complete lack
163
No. 09-10560
of candor and a failure to diligently inform the Court of a material
fact.
The court next found that HLF, although an unrepresented corporation,
was “de facto” represented by the counsel of its co-defendants at trial. The court
explained that “these seven attorneys, representing the three individual
co-defendants [El-Mezain, Baker, and Elashi] – all with the same defense and
defense strategy – are deemed to have adequately represented the interests of
the unrepresented corporate entity that was operated by those individual
co-defendants.”
Next, the court addressed the issue of Natarajan’s authority to represent
HLF on appeal. The Order stated, “The evidence is undisputed that no HLF
representative authorized or directed Ms. Natarajan to file a notice of appeal on
HLF’s behalf. No one has identified any natural person (other than
Co-Defendants) with the necessary authority to direct HLF’s appellate
representation.” The court noted that “Ms. Natarajan proposes that the Court
appoint a third-party ‘trustee’ who can speak and act for HLF and direct Ms.
Natarajan as HLF’s counsel.” The court concluded that “[t]he unique
circumstances of this case require the Court to find a sui generis solution. . . .
Therefore, in the interests of fairness and ensuring justice for HLF, the Court
hereby exercises its inherent authority to appoint Ms. Natarajan as HLF’s pro
bono counsel.” The court explained that “Ms. Natarajan’s authority to represent
HLF hereby relates back to the date of her initial appearance and notice of
appeal – June 5, 2009.” The Order lastly discussed HLF’s corporate status,
finding that on March 3, 2003, California suspended HLF’s powers, rights, and
privileges due to nonpayment of franchise taxes.53
53
Natarajan argues on appeal that as of July 2007, due to nonpayment of franchise
taxes, HLF was a “defunct” corporation and had no directors or officers bound by fiduciary duty
to act on its behalf. She is incorrect. Under California law, a California corporation’s failure
to pay franchise taxes does not result in the dissolution of the corporation, but merely results
164
No. 09-10560
2. HLF’s appeal
HLF54 appeals its conviction and sentence as well as certain findings in the
Order. It argues that it was denied its Sixth Amendment right to counsel when
it was tried, convicted, and sentenced without the benefit of counsel. To the
extent that HLF was “de facto” represented by the counsel of its co-defendants,
as the district court found, HLF argues that its Sixth Amendment rights to
conflict-free counsel and to effective assistance of counsel were denied. HLF also
asserts that its rights under the Confrontation Clause, the Due Process Clause
of the Fifth Amendment, and Federal Rule of Criminal Procedure 43 were
violated when it was tried, convicted, and sentenced without counsel. HLF
contends that, due to these violations, we should vacate its conviction and
sentence and remand the case to the district court for further proceedings.
Before we can address the merits of HLF’s appeal, we must first decide
whether we have jurisdiction over the appeal. The Government argues that we
lack appellate jurisdiction because (1) the district court erred in appointing
Natarajan as appellate counsel and (2) Natarajan had no authority to file a
in a suspended status. See CAL. REV. & TAX. CODE § 23301; see also MARSH’S CAL. CORP. L. §
21.18 (“Where the rights and privileges of a corporation are suspended for failure to pay
franchise taxes, it is no longer treated as having been dissolved or its corporate franchise
‘forfeited,’ but it is merely subjected to certain disabilities unless and until it is ‘revived’ by the
payment of the back taxes and penalties.”). During suspension, the corporation is prohibited
from exercising certain rights, including, inter alia, the right to prosecute or defend against a
civil lawsuit and the right to enter into a contract. See MARSH’S CAL. CORP. L. § 21.18.
Although a suspended corporation is subject to these limitations, the corporation continues to
exist as an entity. Furthermore, the corporation can be “revived” to its full powers by the
payment of delinquent taxes and penalties and the issuance of a certificate of revivor. See CAL.
REV. & TAX. CODE § 23305. A majority of the directors or an officer, among others, can apply
for a certificate of revivor on behalf of the corporation. Id. Although we need not decide the
issue, this at least suggests that the directors and officers of such a corporation continue in
office.
54
Natarajan, as appointed appellate counsel for HLF, made the following arguments
in her briefs, purportedly on behalf of HLF. In this section of the opinion, for the sake of
clarity, we attribute to HLF all of the arguments made in Natarajan’s appellate briefs.
165
No. 09-10560
notice of appeal on HLF’s behalf.55 The Government contends that HLF’s notice
of appeal was defective and that we must therefore dismiss the appeal. HLF
argues that we have jurisdiction because the district court had the inherent
authority to appoint Natarajan as appellate counsel and there was sufficient
authorization under the circumstances. For the following reasons, we agree with
the Government that HLF’s notice of appeal was unauthorized and thus invalid,
thereby depriving us of jurisdiction.
We review the district court’s legal conclusions de novo. See, e.g., United
States v. Gomez, 623 F.3d 265, 268 (5th Cir. 2010); Magallon v. Livingston, 453
F.3d 268, 271 (5th Cir. 2006). The district court’s factual findings are reviewed
for clear error. Gomez, 623 F.3d at 268. “We review de novo a district court’s
invocation of its inherent power . . . .” F.D.I.C. v. Maxxam, Inc., 523 F.3d 566,
590 (5th Cir. 2008); see also Positive Software Solutions, Inc. v. New Century
Mortg. Corp., 619 F.3d 458, 460 (5th Cir. 2010). “[W]hen these inherent powers
are invoked, they must be exercised with ‘restraint and discretion.’” Gonzalez
v. Trinity Marine Group, Inc., 117 F.3d 894, 898 (5th Cir. 1997) (citation
omitted). A district court’s inherent power “is not a broad reservoir of power,
ready at an imperial hand, but a limited source; an implied power squeezed from
the need to make the court function.” F.D.I.C., 523 F.3d at 591.
In the Order, the district court decided from the unusual circumstances of
the case “to find a sui generis solution” and appoint Natarajan as HLF’s pro bono
counsel, with her representation relating back to the date of her notice of appeal.
HLF argues that the district court can exercise its inherent authority to appoint
counsel when necessary, and therefore Natarajan’s appointment was proper. In
55
The Government presents these arguments on cross-appeal from the district court’s
appointment of Natarajan, but the Government’s arguments are more akin to a jurisdictional
challenge to HLF’s appeal. Therefore, although we do not consider the Government’s
arguments in the form of a cross-appeal, we consider them in determining whether we have
appellate jurisdiction.
166
No. 09-10560
support of its argument, though, HLF cites only cases involving a trial court
appointing counsel at the trial stage of the proceeding.56 See, e.g., United States
v. Bertoli, 994 F.2d 1002, 1016–18 (3d Cir. 1993); United States v. Accetturo, 842
F.2d 1408, 1412–15 (3d Cir. 1988); United States v. Rivera, 912 F. Supp. 634,
639–40 (D.P.R. 1996); United States v. Crosby, 24 F.R.D. 15, 16 (S.D.N.Y. 1959).
In the instant case, the district court exercised its inherent authority to appoint
appellate counsel. We need not address whether it was within the district
court’s inherent authority to appoint appellate counsel because, even assuming
the appointment of Natarajan was within the district court’s inherent authority,
there remains the issue whether Natarajan had the necessary authorization to
file and pursue the appeal on behalf of HLF.
It is undisputed that no HLF representative authorized Natarajan to file
a notice of appeal on HLF’s behalf. Instead, the district court itself appointed
Natarajan as HLF’s counsel and retroactively authorized HLF’s notice of appeal
under its inherent authority. It is well established, however, that “the decision
to appeal rests with the defendant.” Roe v. Flores-Ortega, 528 U.S. 470, 479
(2000) (emphasis added); see also LEGAL ETHICS, LAWYER’S DESKBOOK ON
PROFESSIONAL RESPONSIBILITY § 1.2–2(a) (2011–12 ed.) (“On these significant
and central issues, such as the question of . . . whether to appeal, the client
should have the final say.”); RESTATEMENT (THIRD) OF THE LAW GOVERNING
LAWYERS § 22(1) (2000) (“[T]he following and comparable decisions are reserved
to the client[:] . . . whether to appeal in a civil proceeding or criminal
prosecution.”). A defendant is not required to pursue an appeal at all. Because
the decision to appeal belongs exclusively to the defendant, the defendant’s
counsel may not prosecute an appeal—even if counsel believes it to be in the
defendant’s best interest—if the defendant chooses to forgo an appeal. For
56
We express no opinion on the district court’s inherent power to appoint trial counsel
for an unrepresented corporation.
167
No. 09-10560
example, in Smith v. Armontrout, 857 F.2d 1228, 1230 (8th Cir. 1988), the
Eighth Circuit held that a notice of appeal filed by court-appointed counsel on
behalf of a capital murder defendant sentenced to death was unauthorized where
the defendant indicated that he wanted the appeal dismissed. The court found
that the notice of appeal was therefore ineffective and dismissed the appeal. Id.Here, because the important decision whether to appeal is the province of
the defendant, not of the district court or of defense counsel, we conclude that
the district court erred in assuming that it could authorize the appeal on behalf
of HLF. Natarajan lacked authorization from HLF to file an appeal. As an
academic with no connection to HLF, Natarajan took it upon herself to file a
notice of appeal on HLF’s behalf. The district court’s decision to appoint
Natarajan with purported authority to appeal, although laudable in its intent,
does not overcome the deficiency. The notice of appeal was unauthorized and
thus invalid. We hold, therefore, that HLF’s appeal must be dismissed in light
of the defective notice of appeal.57
Our foregoing analysis regarding a district court’s authority to authorize
a notice of appeal is expressly confined to the facts of this case. We hold only
that the district court could not authorize a notice of appeal filed on behalf of an
unrepresented defendant corporation by an attorney with no connection to the
defendant and where no corporate representative authorized the appeal.
57
Natarajan contends that, if we find that the notice of appeal was unauthorized, we
should order an equitable remedy to allow HLF to appeal its conviction and sentence.
Natarajan posits that we could equitably excuse the insufficient authorization or appoint a
third party to serve as HLF’s representative to authorize and direct the appeal. The
Government responds that HLF is not without procedural avenues to challenge its conviction
and sentence, as HLF may collaterally attack its conviction through a petition for a writ of
error coram nobis. See United States v. Rad-O-Lite of Philadelphia, Inc., 612 F.2d 740, 744 (3d
Cir. 1979) (holding that a writ of coram nobis is the mechanism through which “persons not
held in custody can attack a conviction for fundamental defects, such as ineffective assistance
of counsel” and that “[c]ourts regularly have allowed corporations to petition for coram nobis”).
We need not decide this question on appeal, and we therefore decline to impose the equitable
remedy urged by Natarajan.
168
No. 09-10560
For the foregoing reasons, we dismiss HLF’s appeal for lack of jurisdiction.
3. Hollander’s appeal
Hollander separately appeals the Order. Specifically, she argues that we
should vacate the following portion of the Order: “Ms. Hollander’s failure to
disclose to Judge Fish the potential effect of her firm’s withdrawal before the
first trial and her failure to disclose to the undersigned the potential effect of
HLF being unrepresented during the second trial showed a complete lack of
candor and a failure to diligently inform the Court of a material fact.” Hollander
asserts that the district court erred in finding that she committed professional
misconduct. Although Hollander may well be correct that the district court’s
criticism was undeserved in light of the numerous discussions about HLF’s
representation by all parties during both trial proceedings, we do not reach the
merits of her appeal. We conclude that Hollander’s appeal does not present a
justiciable case or controversy, and we therefore dismiss the appeal for lack of
jurisdiction.
Hollander correctly notes that in Walker v. City of Mesquite, 129 F.3d 831(5th Cir. 1997), we set out this circuit’s rule as to whether a trial court’s sanction
of attorney conduct is a reviewable appellate issue. In Walker, we held that “the
importance of an attorney’s professional reputation, and the imperative to
defend it when necessary, obviates the need for a finding of monetary liability
or other punishment as a requisite for the appeal of a court order finding
professional misconduct.” Id. at 832–33 (emphasis added). Therefore, under
Walker, if the Order had contained a finding that Hollander had committed
professional misconduct, we would have jurisdiction to review her appeal.
We find, however, that the contested language in the Order may have
questioned counsel’s performance, but it stopped short of an actual finding of
professional misconduct. Cf. Walker, 129 F.3d at 832–33 (holding that the trial
court’s finding that the attorney was “guilty of blatant misconduct” constituted
169
No. 09-10560
“a blot on [the attorney’s] professional record” and presented a reviewable
appellate issue). The district court was not engaged in a disciplinary hearing,
nor did the court expressly conclude that Hollander violated a legal or ethical
duty or rule. Its off-the-cuff remark did not constitute the imposition of a
sanction. We think the court’s statement is more akin to a “‘negative comment
or observation from a judge’s pen about an attorney’s conduct or performance,’”
which, unlike a finding of professional misconduct, does not present an
appealable issue. See Butler v. Biocore Med. Techs., Inc., 348 F.3d 1163, 1168
(10th Cir. 2003) (quoting United States v. Gonzales, 344 F.3d 1036, 1047 (10th
Cir. 2003)) (internal quotation marks omitted); see also Keach v. Cnty. of
Schenectady, 593 F.3d 218, 225 (2d Cir. 2010) (“An appellate court can reverse
an order imposing a sanction or making a finding that an attorney has violated
a rule of professional conduct; it has no power to reverse a judge’s poor opinion
of the skill or trustworthiness of a lawyer who has appeared before him or her.”).
Therefore, because the Order did not impose a sanction or make a finding of
professional misconduct, we have no jurisdiction over Hollander’s appeal, and
the appeal is dismissed.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgments of conviction and
sentences for the individual defendants, Mohammad El-Mezain, Ghassan Elashi,
Shukri Abu Baker, Abdulrahman Odeh, and Mufid Abdulqader. We DISMISS
for lack of appellate jurisdiction the separate appeal filed by the Holy Land
Foundation for Relief and Development, and we DISMISS for lack of appellate
jurisdiction the appeal filed by Nancy Hollander.
170