United States v. El-Mezain, Nos. 09–10560

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtKING
Citation664 F.3d 467
PartiesUNITED 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.United States of America, Plaintiff–Appellee, v. Shukri Abu Baker; Mohammad El–Mezain; Ghassan Elashi; Mufid Abdulqader; Abdulrahman Odeh, Defendants–Appellants.United States of America, Plaintiff–Appellee, v. Mohammad El–Mezain, Defendant–Appellant.United States of America, Plaintiff–Appellee–Cross–Appellant, v. Holy Land Foundation for Relief and Development, also known as HLF, Defendant–Appellant–Cross–Appellee.United States of America, Plaintiff, v. Shukri Abu Baker, Defendant,Nancy Hollander, Appellant.
Decision Date27 December 2011
Docket Number08–10774,Nos. 09–10560,08–10664,10–10590 and 10–10586.

664 F.3d 467

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.United States of America, Plaintiff–Appellee,
v.
Shukri Abu Baker; Mohammad El–Mezain; Ghassan Elashi; Mufid Abdulqader; Abdulrahman Odeh, Defendants–Appellants.United States of America, Plaintiff–Appellee,
v.
Mohammad El–Mezain, Defendant–Appellant.United States of America, Plaintiff–Appellee–Cross–Appellant,
v.
Holy Land Foundation for Relief and Development, also known as HLF, Defendant–Appellant–Cross–Appellee.United States of America, Plaintiff,
v.
Shukri Abu Baker, Defendant,Nancy Hollander, Appellant.

Nos. 09–10560

08–10664

08–10774

10–10590 and 10–10586.

United States Court of Appeals, Fifth Circuit.

Dec. 7, 2011.As Revised Dec. 27, 2011.


[664 F.3d 482]

Susan Cowger, Asst. U.S. Atty. (argued), Dallas, TX, Joseph Francis Palmer (argued), U.S. Dept. of Justice, Civ. Div. App. Staff, Washington, DC, for Plaintiff–Appellee.

[664 F.3d 483]

Joshua L. Dratel (argued), (Court–Appointed), Aaron J. Mysliwiec (Court–Appointed), Law Offices of Joshua L. Dratel, P.C., New York City, John D. Cline (argued), San Francisco, CA, Linda Moreno, Tampa, FL, Nancy Hollander (Court–Appointed), Theresa M. Duncan, Freedman, Boyd, Hollander, Goldberg, Ives & Duncan, P.A., Albuquerque, NM, Marlo Pfister Cadeddu (Court–Appointed), Dallas, TX, Gregory Burke Westfall (Court–Appointed), Arlington, TX, Ranjana Natarajan (argued), University of Texas School of Law, National Security Clinic, Austin, TX, for Defendants–Appellants.

J. Craig Jett, Burleson, Pate & Gibson, L.L.P., Dallas, TX, for American Friends of Service Committee, Atlantic Philanthropies, Carter Center, Christian Peacemaker Teams, Constitution Project, Council on Foundations, Nathan Cummings Foundation, Fund for Constitutional Government, Global Greengrants Fund, Grantmakers Without Borders, Grassroots International, Humanitarian Law Project, Islamic Relief U.S.A., Milt Lauenstein, Operation, U.S.A., Peace Appeal Foundation, Rockefeller Brothers Fund, Samuel Rubin Foundation, Rutherford Institute, Tikva Grassroots Empowerment Fund, Urgent Action Fund for Women's Human Rights, Amici Curiae.Jean–Jacques Cabou, Osborn Maledon, P.A., Phoenix, AZ, for National Association of Criminal Defense Lawyers, Amicus Curiae.Michael E. Tigar (argued), Pittsboro, NC, K.C. Goodwin Maxwell, San Francisco, CA, for Appellant in No. 10–10586.Appeals 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. § 1701 et 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 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

[664 F.3d 484]

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.

+-----------------+
                ¦TABLE OF CONTENTS¦
                +-----------------+
                
I. Factual and Procedural Background 485
                II. Discussion 490
                
 A. Testimony of witnesses using pseudonyms 490
                 B. Hearsay evidence 494
                
 1. Mohamed Shorbagi 494
                 2. Documents seized from the Palestinian Authority 497
                 3. Elbarasse and Ashqar documents 501
                
 C. Prejudicial evidence under Rule 403 507
                 D. Expert and lay opinion testimony 511
                
 1. John McBrien 511
                 2. FBI Agents Lara Burns and Robert Miranda 513
                 3. Matthew Levitt 515
                 4. Steven Simon 516
                
 E. Letter rogatory 516
                 F. Production of the defendants' intercepted statements 518
                 G. Harmless and cumulative error 525
                
 1. Harmless error 525
                
 a. HLF's connection to Hamas 527
                
 b. Hamas's control of the zakat committees 531
                
 2. Cumulative error 535
                
 H. Jury charge 535
                 I. The search of HLF's offices 539
                 J. Defendant Elashi's double jeopardy issue 545
                
 1. Time 546
                 2. Co-conspirators 547
                 3. Statutory offenses 547
                 4. Overt acts 549
                 5. Place 550
                
 K. Defendant El–Mezain's collateral estoppel issue 551
                
 1. Collateral estoppel as a bar to the instant conviction 551
                 2. Collateral estoppel and the exclusion of evidence 557
                
 L. Mistrial and double jeopardy 559
                 M. Challenge to FISA applications and intercepts 563
                
 1. Disclosure of FISA applications and orders 563
                 2. Suppression of FISA intercepts 568
                
 N. Sentencing 570
                
 1. Terrorism adjustment 570
                 2. Value of laundered funds 571
                
 O. Appeals of HLF and Nancy Hollander 573
                
 1. Background 573
                 2. HLF's appeal 576
                 3. Hollander's appeal 578
                
III. Conclusion 579
                

[664 F.3d 485]

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 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...

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305 practice notes
  • United States v. Gadson, Nos. 12–30007
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 19 Agosto 2014
    ...of [the defendants]—and other facts he learned during the investigation.” 498 F.3d at 904–05; see also United States v. El–Mezain, 664 F.3d 467, 513–14 (5th Cir.2011) (allowing lay opinion testimony interpreting telephone calls when “the agents' opinions were limited to their personal perce......
  • United States v. Zareck, CRIMINAL 09-168
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • 23 Septiembre 2021
    ...witness's personal knowledge, such testimony is usually permissible” under Rule 701.....Id.; see also, e.g., United States v. El-Mezain, 664 F.3d 467, 514 (5th Cir. (“Testimony need not be excluded as improper lay opinion, even if some specialized knowledge on the part of the agents was req......
  • Garza v. Thaler, Civil No. SA–09–CA–528–OG.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • 18 Diciembre 2012
    ...to harmless error analysis. Coy v. Iowa, 487 U.S. 1012, 1021–22, 108 S.Ct. 2798, 2803, 101 L.Ed.2d 857 (1988); United States v. El–Mezain, 664 F.3d 467, 491 (5th Cir.2011), cert. denied,––– U.S. ––––, 133 S.Ct. 525, ––– L.Ed.2d ––––, 2012 WL 1835124 (2012).D. AEDPA Analysis Insofar as petit......
  • United States v. Evans, No. 17-20158
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 12 Junio 2018
    ...States v. Lockhart , 844 F.3d 501, 512 (5th Cir. 2016). If error occurred, it can be excused if harmless. See United States v. El-Mezain , 664 F.3d 467, 525-26 (5th Cir. 2011) ; see also Fed. R. Crim. P. 52(a). Here, because the alleged errors are nonconstitutional, such errors are harmless......
  • Request a trial to view additional results
304 cases
  • United States v. Gadson, Nos. 12–30007
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 19 Agosto 2014
    ...of [the defendants]—and other facts he learned during the investigation.” 498 F.3d at 904–05; see also United States v. El–Mezain, 664 F.3d 467, 513–14 (5th Cir.2011) (allowing lay opinion testimony interpreting telephone calls when “the agents' opinions were limited to their personal perce......
  • United States v. Zareck, CRIMINAL 09-168
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • 23 Septiembre 2021
    ...witness's personal knowledge, such testimony is usually permissible” under Rule 701.....Id.; see also, e.g., United States v. El-Mezain, 664 F.3d 467, 514 (5th Cir. (“Testimony need not be excluded as improper lay opinion, even if some specialized knowledge on the part of the agents was req......
  • Garza v. Thaler, Civil No. SA–09–CA–528–OG.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • 18 Diciembre 2012
    ...to harmless error analysis. Coy v. Iowa, 487 U.S. 1012, 1021–22, 108 S.Ct. 2798, 2803, 101 L.Ed.2d 857 (1988); United States v. El–Mezain, 664 F.3d 467, 491 (5th Cir.2011), cert. denied,––– U.S. ––––, 133 S.Ct. 525, ––– L.Ed.2d ––––, 2012 WL 1835124 (2012).D. AEDPA Analysis Insofar as petit......
  • United States v. Evans, No. 17-20158
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 12 Junio 2018
    ...States v. Lockhart , 844 F.3d 501, 512 (5th Cir. 2016). If error occurred, it can be excused if harmless. See United States v. El-Mezain , 664 F.3d 467, 525-26 (5th Cir. 2011) ; see also Fed. R. Crim. P. 52(a). Here, because the alleged errors are nonconstitutional, such errors are harmless......
  • Request a trial to view additional results
1 firm's commentaries
1 books & journal articles
  • MONEY LAUNDERING
    • United States
    • American Criminal Law Review Nbr. 58-3, July 2021
    • 1 Julio 2021
    ...Circuit’s multifactor standard); see also United States v. Travillion, 759 F.3d 281, 295 (3d Cir. 2014); United States v. El-Mezain, 664 F.3d 467, 546 (5th Cir. 2011); United States v. MacDougall, 790 F.2d 1135, 1144 (4th Cir. 1986); United States v. Thomas, 759 F.2d 659, 662 (8th Cir. 1985......

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