By Alan R. Kabat, Bernabei & Wachtel, PLLC
On December 7, 2011, the U.S. Court of Appeals for the Fifth Circuit issued its long-anticipated decision in the Holy Land Foundation prosecution.  United States v. El-Mezain, et al., No. 09-10560, 664 F.3d 467, 2011 WL 6058592 (5th Cir. Dec. 7, 2011). While this decision upheld the jury verdict and judgment against the defendants, the Fifth Circuit did address a number of issues of broader legal significance, and recognized the legitimacy of several arguments raised by the defendants as to the improper use of certain categories of evidence at trial.

Background and the 2001 Designation of Holy Land Foundation

The Holy Land Foundation (HLF), a charity in Texas that raised funds for humanitarian assistance in Palestine, was one of the largest Muslim charities in the United States. It was founded in 1988, changed its name to HLF in 1991, and did fundraising on a nationwide basis.
This case started two decades ago. In the early 1990s, the U.S. government obtained FISA warrants (under the Foreign Intelligence Surveillance Act of 1978) from the Foreign Intelligence Surveillance Court (FISC), which has the authority to issue orders permitting the government to conduct clandestine wiretaps and physical searches based on a one-sided presentation by the DOJ, and without meeting the Fourth Amendment’s probable cause standard. 50 U.S.C. § 1801 et seq. These warrants were used to monitor the communications of senior HLF officials. In January 1995, the U.S. government designated Hamas as a Specially Designated Terrorist (SDT), thereby prohibiting all financial transactions with or the benefit of Hamas, and blocking all assets of Hamas within the U.S.
On December 3, 2001, the Office of Foreign Assets Control (OFAC), U.S. Department of the Treasury, designated HLF as a Specially Designated Global Terrorist (SDGT), based on information obtained from the FISA warrants that allegedly showed HLF’s support for Hamas. On December 4, 2001, OFAC issued an order that blocked HLF’s assets, thereby shutting down HLF, and OFAC did a warrantless seizure of the computers and files in HLF’s offices. In April 2002, a magistrate judge issued a warrant to authorize the FBI to search the property that OFAC had seized.
In March 8, 2002, HLF filed a lawsuit in the U.S. District Court for the District of Columbia, challenging its designation by raising constitutional claims under the First, Fourth, and Fifth Amendments, and statutory claims under the Religious Freedom Restoration Act and the Administrative Procedure Act. Judge Kessler granted defendants’ motion to dismiss the complaint, except as to their search and seizure claim under the Fourth Amendment. Holy Land Found. for Relief & Dev. v. Ashcroft, 219 F. Supp. 2d 57 (D.D.C. 2002). HLF appealed to the U.S. Court of Appeals for the D.C. Circuit, which affirmed in all respects, and directed the grant of summary judgment in favor of the government. Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156 (D.C. Cir. 2003). The D.C. Circuit held that the government could rely on hearsay evidence in designating HLF. Id. at 162. The D.C. Circuit rejected HLF’s claims under the Religious Freedom Restoration Act on the grounds that there was “no free exercise right to fund terrorists” and that the evidentiary “record clearly supports a conclusion that HLF did.” 167. The D.C. Circuit denied HLF’s petition for rehearing en bancSee Order (No. 02-5307) (D.C. Cir. Aug. 22, 2003). In March 2004, the Supreme Court denied HLF’s petition for certiorari. Holy Land Foundation for Relief & Dev. v. Ashcroft, 540 U.S. 1218 (2004).

The 2004 Indictment of the Holy Land Foundation

In late July 2004, HLF filed a complaint with the U.S. Department of Justice, alleging that the FBI had falsified an affidavit used to support the investigation and prosecution of HLF and its officers. In particular, HLF alleged that there were 67 errors or discrepancies in the FBI’s translation of Israeli intelligence documents. See Eric Lichtblau, “Islamic Charity Says F.B.I. Falsified Evidence Against It,” New York Times, July 27, 2004, at A-12. In response, on July 26, 2004, the government unsealed an indictment of HLF and seven individuals associated with it. United States v. Holy Land Foundation for Relief and Development, Shukri Abu Baker, Mohammad El-Mezain, Ghassan Elashi, Haitham Maghawri, Akram Mishal, Mufid Abdulqader, and Abdulrahman Odeh, No. 04-CR-240G, Indictment (N.D. Tex. July 26, 2004).
The defendants were charged in a 42-count indictment with (1) one count of conspiracy to provide material support to a foreign terrorist organization (Hamas), in violation of 18 U.S.C. § 2339B; (2) eleven counts of providing material support to Hamas in violation of Section 2339B; (3) one count of conspiracy to deal in the property of a specially designated terrorist group (Hamas); (4) twelve counts of dealing in the property of Hamas in violation of 50 U.S.C. §§ 1701-1706; (5) thirteen counts of money laundering; and (6) four counts of filing false income tax forms. Other than the income tax charges, the charges are based on overt acts consisting of providing charitable aid to other charities which are alleged to be linked to Hamas, or to individual recipients who were family members of Hamas members. There is no allegation that HLF gave money directly to Hamas. Instead, the allegations were that HLF gave money to “zakat” committees in Palestine, which the government alleged were not legitimate charities but were front organizations controlled by Hamas.

The First Trial (2007)

The first trial, before U.S. District Judge Joe Fish (since retired), resulted in a mistrial in October 2007, as the jurors were deadlocked on most of the counts as to all but one of the defendants. The jurors acquitted one defendant (El-Mezain) on all but one of the counts against him, and failed to reach a verdict on one conspiracy count.

The Second Trial (2008)

The second trial, before U.S. District Judge Jorge Solis in 2008, lasted six weeks, and resulted in a guilty verdict for all defendants on all the remaining counts (but limited to the one conspiracy count for El-Mezian) on November 24, 2008. At the second trial, HLF was not represented by counsel.
HLF was sentenced to one years’ probation, which was essentially a meaningless sanction, as it remains designated by OFAC and is unable to renew its activities. The individual defendants were sentenced as follows: Shukri Abu Baker (65 years), Mohammad El-Mezain (15 years), Ghassan Elashi (65 years), Mufid Abdulqader (20 years), and Abdulrahman Odeh (15 years). Defendants Haitham Maghawri and Akram Mishal were not tried, since they remained outside the country for the entire time after the indictment.

The U.S. Court of Appeals for the Fifth Circuit

The defendants filed an appeal with the U.S. Court of Appeals for the Fifth Circuit, which issued its decision on December 7, 2011, after oral argument in early September 2011. United States v. El-Mezain, et al., No. 09-10560, __ F.3d __, 2011 WL 6058592 (5th Cir. Dec. 7, 2011).
On appeal, the Fifth Circuit noted that “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.” El-Mezian, Op. at 15.  What this means, from a layman’s viewpoint, is that the defendants did not argue that the evidence presented by the government was inadequate to justify the guilty verdicts. Instead, the defendants argued that some of the evidence should not have been admitted at trial, and the jury’s verdict had to be set aside because the inadmissible evidence improperly caused the jury to decide that the defendants were guilty. Without that inadmissible evidence, defendants argued that the jury would have acquitted them.
The overall thrust of the Fifth Circuit’s decision is that despite evidentiary errors that were made during the trial, the Fifth Circuit concluded that there was sufficient other evidence, including wiretap evidence, showing that HLF knowingly supported Hamas by funneling money to “zakat” committees in Palestine (both the West Bank and Gaza), which the individual defendants knew were controlled by Hamas. Thus, the Fifth Circuit concluded, after Hamas was designated in 1995, HLF concealed its continuing support of Hamas by working with the “zakat” committees in order to circumvent the ban on supporting Hamas. Some $12.4 million was sent outside the U.S. from 1995 to 2001 to support Hamas, of which nearly $4 million was specifically sent to 6 “zakat” committees controlled by Hamas. El-Mezian, Op. at 10.

HLF was Not Represented on Appeal

Prior to the first trial, HLF was initially represented by Nancy Hollander of the Freedman Boyd law firm. Id. at 159. Since OFAC would not authorize the release of HLF’s blocked funds, OFAC only authorized her to represent HLF on a pro bono basis. Id. However, since another attorney from the Freedman Boyd law firm represented defendant Baker, the first trial judge had to examine whether all the defendants had waived any conflict of interest. Id. at 160-61. Ultimately, the conflict waiver issue could not be resolved, as no one could authorize a waiver on behalf of HLF itself. Hence, Ms. Hollander then withdrew as counsel for HLF at the first trial, and HLF was unrepresented at the first trial. Id. at 161-62.
At the second trial, HLF was again unrepresented, and was convicted and sentenced without counsel. Id. at 162.
After the convictions, Ranjana Natarajan, Director of the National Security Clinic at the University of Texas Law School, filed both an entry of appearance and a notice of appeal on behalf of HLF. Id. at 162. The prosecutors moved to strike these filings, arguing that HLF had not authorized, and could not authorize, her participation. Id. The district court, after an evidentiary hearing, held that even though HLF was not officially represented at the first trial, it was effectively represented by the attorneys who represented the individual defendants, since they had “the same defense and defense strategy.” Id. at 164. The district court recognized that while HLF had not authorized Ms. Natarajan to act on its behalf, “in the interests of farness and ensuring justice for HLF, the Court hereby exercises its inherent authority to appoint Ms. Natarajan as HLF’s pro bon counsel.” Id.
On appeal, HLF argued that its Sixth Amendment right to counsel was violated at the second trial, and that the presence of the attorneys for the individual defendants did not solve that problem, given the potential conflict of interests. Id. at 165. However, the Fifth Circuit did not reach those issues, instead agreeing with the government that the appellate filings on HLF’s behalf “was unauthorized and thus invalid, thereby depriving us of jurisdiction.” Id. at 166. Critically, “the decision to appeal rests with the defendant,” not with an outside person. 167. “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.” Id. The Fifth Circuit did credit the district court for its “laudable” intent to appoint Natarajan as pro bono counsel for appeal, but the absence of authorization from HLF to do an appeal should have been the end of the road. Id. at 168. Therefore, the Fifth Circuit had to “dismiss HLF’s appeal for lack of jurisdiction.” Id. at 169.

The Knowledge (Scienter) Requirement

A number of amici organizations submitted an amicus brief to the Fifth Circuit. The amicus brief separately challenged the jury charge on the substantive violations of the Anti-Terrorism Act (18 U.S.C. § 2339B), arguing that the jury charge violated the Due Process Clause of the Fifth Amendment by not requiring a sufficient knowledge (scienter) requirement on defendants’ part. In other words, defendants could not be convicted unless they knew and intended that the donations they were raising were going to support Hamas through the zakat committees.

More generally, the amicus brief argued that, under 18 U.S.C. § 2339B, a person cannot “be convicted for violating a prohibition on ‘knowingly’ providing ‘material support’ to designated ‘foreign terrorist organizations’ without proof that he or she knowingly provided aid to any designated group.” See United States v. El-Mezian, “Amicus Brief of Charities, Foundations, Conflict-Resolution Groups, and Constitutional Rights Organizations in Support of Defendants and Urging Reversal of Convictions of Counts 2-10,” at 1 (5th Cir. Oct. 26, 2010). The amicus brief further argued that the “erroneous and dangerously expansive interpretation of the material support statute . . . would jeopardize the legitimate charitable work of countless foundations and charities throughout the United States.” Id. at 1. Amicifurther argued that a conviction under Section 2339B should be limited to support for recipients who are designated, and where the donors “know that the recipient has been designated or has engaged in terrorist acts that would render it subject to designation.” Id. at 2.
However, the Fifth Circuit did not address this argument, “because none of the defendants have raised this issue . . . [so] that it is not properly before us.” El-Mezian, Op. at 101 n.22. It remains to be seen whether defendants elsewhere will be able to use the arguments advanced by this amicus brief in challenging their own prosecutions.

The First Amendment Challenge

Four of the individual defendants challenged the trial court’s jury charge on the First Amendment, arguing that speeches that they made about political issues in the Middle East were protected under the First Amendment, so that the government could not use the videotapes of their speeches as evidence at trial. Id. at 94-95. As a threshold matter, although each of these defendants separately brought this challenge, three of them merely “adopted” the argument made by one defendant (Abdulqader) instead of explaining how their own conduct was protected under the First Amendment, so those three defendants had waived their argument. Id. at 94.
As to Abdulqader, the Fifth Circuit held that the jury charge properly instructed the jury as to the text of the First Amendment and the Anti-Terrorism Act (18 U.S.C. § 2339(B)(i)), which specifically provides that “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.” Abdulqader argued that his speech on the video recordings either pre-dated the 1995 designation of Hamas, or did not “incite imminent lawless action.” Id. at 96-97. However, the Fifth Circuit cited the Supreme Court’s decision in Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2724 (2010), which upheld the criminalization of speech that provided material support to terrorism. Id. at 97. Moreover, Abdulqader’s speech could not be considered in isolation, but had to be considered in context of the defendants’ other conduct. Id. at 101.

Search of HLF’s Offices

The defendants also challenged the searches of HLF’s offices as violating the Fourth Amendment’s restrictions on searches and seizures, and they sought to have the seized evidence suppressed, since OFAC did not have a warrant at the time of the seizure of the documents. (Several months later, the FBI obtained a warrant to search the seized documents). The district court upheld the searches under the legal doctrine that the search was analogous to administrative searches. Id. at 101-02. The Fifth Circuit upheld the searches, but for different reasons, primarily because the defendants had not challenged OFAC’s initial blocking order (that prevented HLF from continuing its operations) under the Fourth Amendment, and because money is fungible, there is a need to immediately prevent asset flight. Id. at 102.
The Fifth Circuit expressly distinguished the Ninth Circuit’s recent decision in Al Haramain Islamic Foundation, Inc. v. U.S. Dept. of the Treasury, 660 F.3d 1019 (9th Cir. 2011), which had held that a warrant was required before OFAC could issue the blocking order. Id. at 106. The Fifth Circuit also rejected the application of Al Haramain, since the HLF defendants had not challenged the “presumptively valid” blocking order, which eliminated any “possessory and privacy interests” that defendants had in HLF’s property. Id. at 108. And, the government later obtained a warrant so that the FBI agents could review the seized documents. Id. at 111.

Evidentiary Issues

Although the Fifth Circuit upheld the convictions, its rulings on several evidentiary issues are of broader significance. Here, the Fifth Circuit concluded that even though the district court had erred in allowing the government to present certain witnesses and testimony, that error was harmless (i.e., did not affect the outcome), since there was sufficient other evidence to support the jury’s verdict. The following paragraphs discuss the defendants’ evidentiary challenges.

Production of the Defendants’ Intercepted Statements

One of the most significant evidentiary rulings that the defendants lost was their demand that they be allowed to review the recordings and transcripts of all of the wiretapped communications, not just a limited set that the government turned over. Over more than a decade, “the Government intercepted tens of thousands of telephone calls and facsimile transmissions” pursuant to the FISA warrants. Id. at 65. Prior to trial, FBI translators “identified which calls were pertinent to the intelligence investigation and prepared approximately 9,600 English language summaries, as well as a smaller number of verbatim transcripts. Id. The government initially classified all the intercepted calls, and later declassified some of the intercepts and English summaries. Id. However, the remaining materials remained classified, and while defendants’ counsel (who had security clearances) could review them, counsel could not read Arabic or understand Arabic conversations, and could not discuss them with their clients. 65-66. Thus, defense counsel were significantly hampered in their ability to do anything with the classified intercepts.
The Fifth Circuit agreed with the district court and the government that even though the defendants were a party to these communications, and so the existence of the communications was not a secret to the defendants, 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,” particularly when other individuals who were not defendants were also participants in those conversations. Id. at 72.
The Fifth Circuit perhaps naively noted that this would not lead to the government classifying all intercepted communications, because “the asserted privilege will not succeed when the information is helpful to the defense or essential to a fair determination of the cause,” yet the court did not explain how the defense would find out about “helpful” information, if the government was the sole arbiter of which information would be declassified. Id. at 73. Even more naively, the Fifth Circuit somehow expected defendants “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.” Id. at 76. Again, since there were tens of thousands of calls and faxes over more than a decade, it would not be possible for anyone to remember the date and time of each call and fax that is relevant to the defenses.

Refusal to Disclose FISA Applications and Intercepts

The Fifth Circuit rejected defendants’ arguments that they should have been allowed to receive the warrant applications submitted to the Foreign Intelligence Surveillance Court (FISC), or the orders issued by the FISC. No other court has allowed such disclosures of the warrant applications or FISC orders. Id. at 143, 147.  Even though the defendants learned of the FISA materials when the government “inadvertently disclosed some of the FISA materials to the defendants,” id. at 146, that did not open the door for defendants to have access to all those materials. Id. at 147-49.
The Fifth Circuit further rejected defendants’ arguments that the trial court should have suppressed the intercepted communications. Id. at 151. Although defendants creatively argued that FISA warrants should be limited to the gathering of foreign intelligence, or to targets who are foreign powers or agents thereof, the Fifth Circuit held that FISA warrants “should be presumed valid,” id., even if the primary purpose was a criminal investigation. Id. at 153.

Witnesses Testifying Under a Pseudonym

Defendants argued that the trial court improperly allowed two witnesses – “Avi,” a legal advisor for the Israel Security Agency, and “Major Lior,” an officer with the Israeli Defense Forces – to testify under a pseudonym as to their knowledge about Hamas financing and control of the “zakat” committees (Avi), and to authenticate documents seized by the Israeli military (Major Lior). El-Mezian, Op. at 16. The defendants argued that these pseudonyms violated their rights under Sixth Amendment’s Confrontation Clause, since they could not effectively research the backgrounds of the witnesses in order to cross-examine them. The district court held, and the Fifth Circuit agreed, that it was necessary to use pseudonyms to protect the safety of these witnesses. Id. at 16-18.  The Fifth Circuit also held that the defendants were able to engage in meaningful cross-examination of the witnesses, and the district judge had instructed the jury that they could consider the use of pseudonyms in assessing the witnesses’ credibility. Id. at 20-22.

Hearsay Evidence that Hamas Controlled the Zakat Committees

The defendants then challenged the admission of evidence allegedly showing that defendants knew that Hamas was linked to the zakat committees, or otherwise controlled them. The Fifth Circuit held that one witness, Mohamed Shorbagi, a former HLF employee, did properly testify about HLF’s acts in raising money to support Hamas after it was designated in 1995. Id. at 25-26. However, Shorbagi lacked first-hand knowledge that Hamas controlled the zakat committee, since the only basis for his knowledge were “newspapers, leaflets, the Internet, and friends,” which is inadmissible hearsay that should not have been admitted. Id. at 26-27.
Defendants also challenged the admission of three documents seized by the Israeli military from the headquarters of the Palestinian Authority. Those documents allegedly discussed the financing of Hamas and that one of the zakat committees was controlled by Hamas. Id. at 27-28. The Fifth Circuit agreed with defendants that these documents should not have been admitted, since even though they were obtained from a government office, they were not official public records created by that government entity. Id. at 29-34.
Defendants challenged several other documents that the FBI had seized from the homes of two unindicted co-conspirators, which allegedly showed that HLF supported Hamas through another zakat committee. Id. at 34-36. However, the Fifth Circuit held that those documents were admissible under the co-conspirator exception to the hearsay rules, i.e. Rule 801(d)(2)(E), Federal Rules of Evidence. Id. at 36-39. It was of no matter that the government had not proven conspiracy as a crime with respect to the unindicted co-conspirators or the subject matter of those documents, since conspiracy as an evidentiary rule is broader than proof of conspiracy as a crime. Id. at 38. Also, some of the documents contained language showing that HLF regarded the zakat committees and Hamas as one and the same. Id. at 44. And, many of the documents had internal records that were unlikely to be found outside the organization. Id. at 45.

Prejudicial Evidence about Hamas Violence

The defendants then challenged the district court’s allowing the prosecutors to present evidence about “Hamas violence,” including photos, videos, posters, and witness testimony about suicide bombings and violent protests. 46-47. Defendants argued that this evidence was inflammatory and unfairly prejudicial, particularly given that “they were not charged with planning or carrying out terrorist activity or with directly supporting such activity.” 47. The Fifth Circuit recognized that this defense was correct, but nonetheless concluded that “evidence of Hamas violence . . . 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.” Id.  For example, after the defendants presented evidence that the U.S. Agency for International Development (USAID) also “provided humanitarian aid to the Palestinians” after “clashes” with the Israel military, the government was allowed to explain that the “clashes” were in response to terrorist attacks. Id. at 49. And, evidence of Hamas violence that was seized from HLF’s own computers, and from the zakat committees, “was probative of the motive or intent of the committees and HLF to support Hamas.” Id. at 50. The Fifth Circuit concluded that “because this was a case about supporting terrorists, it is inescapable, we believe, that there would be some evidence about violence and terrorist activities.” Id. at 52.

Expert and Lay Opinion Testimony

The defendants then challenged the district court’s admission of testimony from five witnesses under Rules 701 and 702, Federal Rules of Evidence, which govern expert opinion testimony and lay opinion testimony.
John O’Brien was an associate director of OFAC, who testified that the Treasury Department’s “failure” to designate the zakat committees – which defendants argued was a defense since they did not give funds to designated entities, only to the undesignated zakat committees – was of no significance, since Treasury cannot possibly designate every entity associated with a known terrorist. Id. at 52-53. The Fifth Circuit agreed with defendants that Mr. O’Brien should not have provided this testimony, since he was offering a legal conclusion about OFAC’s operations. Id. at 53-54. However, that error was harmless, because an expert witness separately testified to the same effect, i.e., that Treasury cannot include every component of a terrorist organization, and that the OFAC list is not intended to be complete. Id. at 55.
Lara Burns and Robert Miranda were FBI agents, who attempted to provide explanations for some of the language in the seized documents and the wiretap communications. The defendants argued that these witnesses gave what amounted to expert opinions, even though they lacked any basis for providing expert testimony. The Fifth Circuit disagreed, holding that “the agents’ opinions were limited to their personal perceptions from their investigations of this case,” which is admissible lay witness testimony. Id. at 56. Moreover, their testimony was also cumulative of the admissible evidence of other witnesses. Id. at 58.
Matthew Levitt was an expert witness who testified about the history of Hamas, which defendants did not challenge, and that the numerous communications and transactions between HLF and Hamas was significant because it showed a high-level relationship between the two organizations, a relationship not available to the general public. Id. at 59. The Fifth Circuit rejected defendants’ arguments that Levitt’s testimony improperly told the jury what inferences to draw from the evidence, since it was admissible to rebut defendants’ defense “that Hamas leaders could be readily contacted.” Id. at 60.
            Steven Simon, a former staff member of the National Security council, testified about the peace process in the Middle East, and how violence interfered with that process. Id. at 60-61. The Fifth Circuit agreed with defendants that Simon’s testimony “was not relevant and should have been excluded,” since the U.S. government’s reasons for wanting peace in the Middle East “does little to establish that connection” between Hamas and the defendants. Id. at 61. As before, however, the error in admitting Simon’s testimony was harmless, since it was of short duration, and was cumulative of other evidence. Id.

Letters Rogatory to Israel

The defendants also challenged the district court’s refusal to grant letters rogatory, which are a specialized means for obtaining documents from a foreign government to be used in a judicial proceeding in this country. The defendants sought to obtain all the documents that the Israeli military had seized from the zakat committees in Palestine, not just the sub-set of documents that “Avi” (the witness who testified under a pseudonym) had picked. Defendants believed that “Avi” had “cherry-picked pro-Hamas evidence from the seized material to form his opinions about the committees.” Id. at 62. The Fifth Circuit agreed with the district court that it was not necessary for defendants to have access to the some 2,000 boxes of seized materials, as it was only speculative that exculpatory evidence might be present. Id. at 63-64.

Mistrial and Double Jeopardy

  • Finally, the Fifth Circuit rejected defendants’ arguments that the second trial was improper, since there was no basis for the first trial judge to have declared a mistrial after the jury could not reach a verdict on all but one of the counts. Id. at 134-35. However, this issue was not preserved for appeal, since “the record shows that all defendants validly agreed to the mistrial,” id. at 134, particularly after the jurors initially announced that two other defendants (Abdulqader and Odeh) were acquitted on all or nearly all counts, but the individual jurors (when polled by the judge) “indicated that they did not agree with the verdict.” Id. at 136.

  • The defendants also argued that at the first trial, the mistrial was induced by the government’s own misconduct in allowing certain demonstrative exhibits and non-admitted exhibits into the jury room, which allegedly tainted the verdict. Id. at 137. This included “approximately 100 pages and three videotapes.” Id. The Fifth Circuit held that the mistrial was not caused by this conduct, since there was no evidence that sending these exhibits into the jury room was anything other than accidental, and defense counsel did not raise concern when a juror referred to this evidence through a note to the judge. Id. at 139.


The Fifth Circuit’s decision, while upholding the convictions in all respects, did illuminate several evidentiary issues, as well as issues relating to the use of evidence derived from classified information, the warrantless blocking of a non-profit organization and seizure of its documents and computer files. These issues are likely to arise in other prosecutions of individuals and organizations for allegedly supporting terrorism. Although the Fifth Circuit did not address the Due Process Clause challenge regarding the knowledge (Scienter) requirement, the arguments raised in the amicus brief should prove useful to other organizations in the future.

Alan Kabat received a Bachelor of Arts degree from the University of Washington in 1983. He received a Ph.D. in Biology from Harvard University in 1990. Mr. Kabat received a J.D. degree from Georgetown University Law Center in 1998. He was a member of the American Criminal Law Review, and served as Editor-In-Chief for its Thirteenth Survey of White Collar Crime. Mr. Kabat is a member of the American Bar Association and the Metropolitan Washington Employment Lawyers’ Association. He is currently a member of the D.C. Bar Association’s Publications Committee. He also serves as discovery coordinator for a complex multidistrict litigation matter. Mr. Kabat has practiced law with Lynne Bernabei since 1998.
Mr. Kabat has been admitted to practice law in Maryland since 1998, in the District of Columbia since 1999, and in Virginia since 2008. He is also admitted to practice before the Supreme Court, U.S. Courts of Appeals for the District of Columbia Circuit and the Second and Sixth Circuits, Federal District Courts for the District of Columbia and Maryland, and Bankruptcy Court of the District of Maryland.