A new attorney for the individual defendants in the Holy Land Foundation (HLF) criminal case filed a motion to vacate their sentences in the U.S. District Court for the Northern District of Texas, Dallas Division, on Oct. 25, 2013. It argues that the defendants received inadequate assistance of counsel in the trial and on appeal, that the evidence did not show that Hamas controlled the zakat (charity) committees HLF funded and that the government not only failed to turn over evidence that would have been helpful to the defense, but pursued the prosecution based on the defendants’ religious identity. The motion does not seek to overturn the conviction of HLF as a charitable entity, which was convicted at trial without anyone appearing on its behalf. An evidentiary hearing is requested.
Background on the HLF criminal case is here. It was the largest Islamic charity in the U.S. until it was shut down three months after 9/11. HLF had been legally operating for over a decade before its designation and closure. Its former officials were convicted of providing material support for terrorism on retrial in November 2008, and received sentences ranging from 15 to 65 years. The motion is based on 28 USC 2255 which permits a federal prisoner to claim “the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States…” The Supreme Court denied the defendant’s request for review on Oct. 29, 2012.
The ineffective assistance of counsel argument stresses that a central issue in the case was whether or not the zakat committees HLF funded were controlled by Hamas and if so, that the defendants were aware of that fact. (Because Hamas is listed as a Foreign Terrorist Organization, the material support prohibition applies to any entity it controls.) The motion points out that the defense attorneys:
- Did not challenge the government’s expert witnesses, who made conclusions about Hamas control but did not offer factual basis for them.
- Did not call a key witness in the second trial, which resulted in convictions, that was called in the first trial, which resulted in a hung jury. This was Prof. Nathan Brown of George Washington University’s Political Science and International Affairs Department, who had conducted extensive research on zakat committees and had visited one of those at issue in the case. In the first trial he testified he found nothing to indicate it was controlled by Hamas.
- Did not call officials of the zakat committees to provide evidence. The motion included several affidavits from such officials stating that Hamas does not control them.
The motion said in the trial that “neither side called any witnesses who were on the Zakat Committees, worked at the Committees or had any personal business transactions with the Committees. Thus, there was no evidence at all as to how the Zakat Committees operated, how decisions were made, how they received and distributed aid or who actually controlled or directed the activities of the Committees.” [p. 31]
The motion reviews some of the expert witness statements that some members of the Zakat committees were members of Hamas. In response, the motion notes:
“An examination of the evidence, with a proper application of the law, will show that Hamas did not control these committees any more than the fact that a person is a member of the Republican party, and is an officer of Walmart, means that the Republican party controls Walmart. The evidence simply shows that Zakat Committees were composed of community leaders, some of whom were Hamas sympathizers and some of whom were not.” [p. 36]
The defendants’ motion argues that the defense attorneys should have pursued an entrapment defense because the Treasury Department rejected the defendants’ request for guidance after Hamas was listed and the Zakat committees they funded were never put on the terrorist list.
Citing case law that says entrapment occurs when the government causes an offense by someone not ready or having intent to commit a crime, the motion provides details of the defendants’ various attempts to communicate with the government about their work after Hamas was put on the terrorist list in 1995. This includes a phone call between two defendants that was taped by the government. [p. 18-20] The motion says “The facts establish that the HLF defendants were attempting to comply with the law and that the government deliberately misled them into thinking they were doing so. This demonstrates that no offense would have been committed except for the government’s conduct.” [p. 20]
After noting the long-standing legal principle that the government must turn over evidence in its possession that may be beneficial to the defense (from the Supreme Court case Brady v. Maryland), the motion says “There is no question that the government had within its possession and control exculpatory evidence that was not turned over to the defense.” Two categories are cited: records of defendants’ phone conversations intercepted by the government and material in a warehouse in Israel that was seized from the Zakat committee offices.
The taped phone calls would indicate defendants’ “desire to follow the law and a belief that they are following the law.” It would also have shown that material from the offices included a picture of Yasser Arafat and other Fatah material, showing “that Hamas does not control the committees since Fatah and Arafat are enemies of Hamas.” [p. 53]
The motion states that the case was prosecuted “for improper purposes resulting in a denial of due process and equal protection.” [p. 55] The reason for the prosecution was that the defendants are Muslim. It says that “The United States government has made policy decisions to ignore and not prosecute similar conduct by non-Muslims. The prosecution in this case was motivated by a discriminatory purpose and had a discriminating effect.” [p. 56]
The exhibits supporting the motion can be found here.