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After Guilty Verdict, Defense Lawyers in HLF Case Focus on Appeal
Texas Lawyer
December 02, 2008
After a 42-day trial and 8 1/2 days deliberating, a federal jury in Dallas convicted the five individual defendants in United States v. Holy Land Foundation, et al. on charges that they engaged in a conspiracy to help funnel at least $12.4 million to Hamas through a now-defunct Richardson, Texas-based Muslim charity.
Now the defendants' lawyers are focused on the appeal.
At the trial, the five individual defendants -- who were indicted in 2004 -- included former HLF fundraiser Mufid Abdulqader; original HLF chairman Mohammad El-Mezain; former HLF executive director Shukri Abu Baker; former and most recent HLF chairman Ghassan Elashi; and former HLF New Jersey representative Abdulrahman Odeh.
In the court's Nov. 10 charge to the jury, U.S. District Judge Jorge A. Solis of the Northern District of Texas, who presided over the trial, asked the jurors to consider 36 counts, including allegations that the now-defunct foundation and the five individual defendants engaged in a conspiracy to fund Hamas, a Palestinian group in the West Bank and Gaza that the U.S. government has designated as a foreign terrorist organization. In addition, Solis asked the jurors to consider allegations that four of the individual defendants -- Abdulqader, Abu Baker, Elashi and Odeh -- conspired to provide funds, goods and services to a terrorist organization and conspired to commit money laundering. The government also accused Abu Baker and Elashi of money laundering, providing material support to terrorists and filing false tax returns. The HLF defendants had denied the allegations and pleaded not guilty, saying the organization was a charity that sent money it raised to individuals and groups, in some cases orphans, in the West Bank and Gaza for humanitarian purposes.
The jury on Nov. 24 found the individual defendants and HLF guilty on all counts. And the jury decided that some of the HLF defendants must forfeit $12.4 million in property to the federal government in relation to the money-laundering counts.
"This is a great day in the United States. We will not tolerate those who fund terrorism," Richard Roper, U.S. Attorney for the Northern District of Texas, said after the verdict. The verdict is a triumph for Roper, whose office prosecuted the case. Roper is expected to leave office as President-elect Barack Obama takes over the White House in January. Roper is an appointee of President George W. Bush.
"It was very gratifying that the jurors were able to understand that this case was simple. They were trying to fund terrorists," says Elizabeth Shapiro, who is serving as a Special Assistant U.S. Attorney assigned to the Northern District of Texas to help prosecute the HLF defendants. She will soon return to her post in Washington, D.C., where she works on civil matters as deputy director of the U.S. Department of Justice's Federal Programs Branch, a division that litigates on behalf of 100 federal agencies. The HLF case marked the first time Shapiro has worked on a criminal trial.
But after the verdict Greg Westfall, a partner in Fort Worth's Westfall, Platt & Cutrer who represents Odeh, said there was nothing honorable about the government's prosecution of the HLF defendants.
"This was a political prosecution. The government put up a fight, but it wasn't a good fight. ... In not-too-many years from now, we'll look back at this in shame," said Westfall, who alleged the case stands for bigotry and the violation of his client's civil rights.
Jim Jacks, who is the First Assistant U.S. Attorney in the Northern District and led the prosecution team, said at a press conference that defense allegations that the case was political are "hollow." Rather, the case involved more than 10 years' worth of investigation that spanned back into the administration of President Bill Clinton.
"I suppose you would expect that," Jacks said of the allegations. "All we can do is present our case ... and the result is what it is. The statute is there. We presented the evidence," and the jury agreed.
In addition to Shapiro, Jacks' prosecution team included Barry Jonas, a Special Assistant U.S. Attorney assigned to the Northern District.
The court-appointed lawyers representing the defendants in the case are Westfall; Nancy Hollander, John W. Boyd and Theresa Duncan of Albuquerque, N.M.'s Freedman Boyd Hollander Goldberg & Ives who represent Abu Baker; Joshua Dratel of the Law Offices of Joshua Dratel in New York City who represents El-Mezain; Marlo Cadeddu, a Dallas solo who represents Abdulqader; and solo Linda Moreno of Tampa, Fla., and John D. Cline, a partner in the San Francisco office of Jones Day, who represent Elashi. Moreno and Cline did not return telephone calls seeking comment before presstime.
ISSUES ON APPEAL
The defendants were tried last year, but on Oct. 22, 2007, then-Chief U.S. District Judge A. Joe Fish of the Northern District declared a mistrial in the case. Fish, who took senior status on Nov. 12, 2007, subsequently transferred the case to Solis.
Fish's declaration of a mistrial followed a confusing set of events with the jury in the first trial. On Oct. 18, 2007, after nine weeks of trial and 19 days of deliberations, the first trial's jury notified the judge that it had reached a verdict. Fish sealed the verdict sheets for four days, because he was out of town. When Fish returned to Dallas on Oct. 22, 2007, and read the verdict sheets in court, he noted that Abdulqader had been acquitted on all counts, El-Mezain on all but one count and Odeh on all but two counts. Fish then polled the jurors, three of whom said they disagreed with some of the panel's decisions, so the judge sent them back to the jury room for further deliberations. Within hours, the jury returned to the courtroom without a unanimous decision except about El-Mezain, who they acquitted of 31 of the 32 counts against him; they were hung on the remaining count. Fish entered a judgment of acquittal for El-Mezain on 31 counts. As to all the other counts against the five men, the judge declared a mistrial, because the jury was hung.
At the retrial, Shapiro believes the government lawyers presented the evidence in "a more digestable manner" than they did at the 2007 trial. Specifically, Shapiro says, the prosecutors relabeled exhibits to identify them by category rather than by number; supplied more summaries of documents as evidence; and attempted to tighten direct examinations of witnesses. Also, the government hired a jury consultant -- Lisa Blue, a partner in Dallas' Baron & Blue -- for the retrial. Prosecutors had no such help in the 2007 trial.
"It was a lot of small changes that made the difference," Shapiro says.
Shapiro says she doesn't believe she has seen the end of the HLF case.
"I fully expect the defense attorneys after this verdict to raise all sorts of appellate issues," she says, adding that those issues will be without merit.
But four of the HLF defense lawyers say they are confident they have good issues on which to appeal the verdict, including questions surrounding the government's unprecedented use of an anonymous expert witness; the allegedly prejudicial introduction of evidence depicting violence, even though the defendants faced no allegations of violence; and inclusion in the jury charge of a paragraph that allegedly made it possible for jurors to ignore the defendants' First Amendment rights.
Westfall, Cadeddu, Dratel and Hollander say the defendants will appeal the verdict on the basis of Solis' decision allowing prosecutors to use the anonymous expert witness. Although the defense lawyers asked the court to require the prosecutors to identify the witness, he was only identified at trial as "Avi," a representative of the Israeli government. In his testimony in court, Avi made allegations crucial to the government's case about a link between the Hamas leadership and zakat committees in the West Bank and Gaza that received HLF funds. "Zakat" in Arabic means the religious obligation to give alms.
On appeal, the defense lawyers say they will argue that Avi's testimony violated the HLF defendants' Sixth Amendment due-process rights, because the defense lawyers did not have an opportunity to question the witness' credibility. "This is the first trial in the history of the United States where that has been allowed to happen," says Dratel.
Shapiro says the prosecutors used Avi because "we were looking for someone who had specific expertise" and his knowledge was unparalleled. She says the government gave the defense "above and beyond what the rules [of evidence] required" in terms of the underlying basis of Avi's expertise, including a report about Hamas financing that he originally wrote for another case that prosecutors used in the HLF trial. She says even if the defense lawyers had learned Avi's name, it would have done them no good, since he has no published body of work to which they could refer and anything he had written would have been classified by the Israeli government.
The four defense lawyers also say they intend to appeal on the basis of what Dratel refers to as "the constant refrain of violence" that Solis allowed at trial. Numerous times during the trial the prosecutors introduced evidence such as newspaper clippings about suicide bombings, kidnappings and killings tied to the unrest in Israel, the West Bank and Gaza related to the Israeli-Palestinian conflict, says Westfall. On appeal, Westfall says the defense lawyers will cite United States v. Al-Moyad, an Oct. 2 opinion in which the 2nd U.S. Circuit Court of Appeals remanded a case to the trial court for a new trial before a different judge. On appeal, the two defendants -- who had been convicted of conspiring to provide material support to Hamas and al-Qaida -- argued that the trial judge had permitted the government to introduce graphic photographs and a DVD depicting a bus bombing, even though the defendants were not charged with any offense in connection with that event. The 2nd Circuit ruled in favor of the defendants, saying that the evidence was unnecessary and prejudicial.
Westfall believes the same principles will apply in the HLF defendants' appeal. "Basically in this trial, fear and racial prejudice replaced bona fide evidence," Westfall says.
Westfall, Cadeddu, Hollander and Dratel also say that the language included in the charge to the HLF jurors about the defendants' First Amendment rights likely will figure into an appeal. After identifying the U.S. Constitution's free-speech rights, the charge continues:
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.
The additional language went further than the language included in the first trial's jury charge. "The prosecutors wanted to nullify the defendants' First Amendment rights," says Westfall, "and with this charge they basically got their wish."
But Shapiro says, "That jury instruction accurately stated the law. I have every confidence that an appeals court will uphold the trial court's decision to include it."
