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Case: 09-10560 Document: 00511268197 Page: 1 Date Filed: 10/19/2010

IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 09-10560
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 No. 08-10664
UNITED STATES OF AMERICA,
Plaintiff – Appellee
v.
SHUKRI ABU BAKER; MOHAMMAD EL-MEZAIN; GHASSAN ELASHI; MUFID
ABDULQADER; ABULRAHMAN ODEH,
Defendants – Appellants

Consolidated with No. 08-10774


UNITED STATES OF AMERICA,
Plaintiff – Appellee
v.
MOHAMMAD EL-MEZAIN,
Defendant – Appellant
Consolidated with No. 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
Case: 09-10560 Document: 00511268197 Page: 2 Date Filed: 10/19/2010

Consolidated with No. 10-10586


UNITED STATES OF AMERICA,
Plaintiff
v.
SHUKRI ABU BAKER,
Defendant
NANCY HOLLANDER,
Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
HONORABLE JORGE SOLIS, DISTRICT JUDGE
No. 3:04-CR-240-P
BRIEF FOR DEFENDANT-APPELLANT-CROSS-APPELLEE, HOLY
LAND FOUNDATION FOR RELIEF AND DEVELOPMENT

KRISTINE A. HUSKEY NATIONAL SECURITY CLINIC


Texas Bar No. 24002328 UNIVERSITY OF TEXAS SCHOOL
Email: khuskey@law.utexas.edu OF LAW
727 East Dean Keeton St.
RANJANA NATARAJAN Austin, TX 78705
Texas Bar No. 24071013 Tel: 512-232-2698
Fax: 512-232-0800
H. MELISSA MATHER
Texas Bar No. 24010216
ATTORNEYS FOR DEFENDANT-
On the Brief: APPELLANT-CROSS-APPELLEE,
Rachel Anne Fletcher, Law Student HOLY LAND FOUNDATION FOR
Jonathan Chaltain, Law Student RELIEF AND DEVELOPMENT
John Rhoads, Law Student

DATED: October 19, 2010


Case: 09-10560 Document: 00511268197 Page: 3 Date Filed: 10/19/2010

CERTIFICATE OF INTERESTED PERSONS

No. 09-10560
United States of America v. Holy Land Foundation For
Relief and Development, also known as HLF

The undersigned counsel of record for Holy Land Foundation for Relief and

Development, also known as HLF, certifies that the following listed persons and

entities as described in the fourth sentence of Rule 28.2.1 have an interest in the

outcome of this case. These representations are made in order that the judges of this

Court may evaluate possible disqualification or recusal.

1. United States of America.


2. Abdulqader, Mufid
3. Abu Baker, Shukri
4. Boyd, John W.
5. Cadeddu, Marlo
6. Cline, John D.
7. Cowger, Susan
8. Dratel, Joshua L.
9. Duncan, Theresa M.
10. El-Mezain, Mohammad
11. Hollander, Nancy
12. Holy Land Foundation for Relief and Development
13. Huskey, Kristine
14. Jacks, James
15. Jonas, Barry
16. Junker, Walt
17. Mather, H. Melissa
18. Moreno, Linda
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19. Mysliwiec, Aaron


20. Natarajan, Ranjana
21. National Security Clinic, University of Texas School of Law
22. Odeh, Abdulrahman
23. Office of United States Attorney, Northern District of Texas
24. Palmer, Joseph F.
25. Shapiro, Elizabeth
26. Solis, Honorable Jorge
27. Tigar, Michael
28. Westfall, Gregory B.

Dated: October 19, 2010 Respectfully submitted,

/s/ Kristine A. Huskey

KRISTINE A. HUSKEY
NATIONAL SECURITY CLINIC
UNIVERSITY OF TEXAS SCHOOL OF
LAW
727 East Dean Keeton St.
Austin, TX 78705
Tel: 512-232-2698

Attorney for Defendant-Appellant-Cross-


Appellee, HOLY LAND FOUNDATION
FOR RELIEF AND DEVELOPMENT, also
known as HLF

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REQUEST FOR ORAL ARGUMENT

The defendant-appellant-cross-appellee, HOLY LAND FOUNDATION FOR

RELIEF AND DEVELOPMENT, also known as HLF, respectfully requests oral

argument. This appeal comes to the Court after two lengthy trials that have

generated a lengthy record and a number of constitutional issues. Oral argument

will assist the Court in addressing the intricacies of the record and the nuances of the

controlling law. Oral discussion of the facts and the applicable precedent would

benefit the Court.

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TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS ........................................................ i 


REQUEST FOR ORAL ARGUMENT ................................................................... iii 
TABLE OF CONTENTS ......................................................................................... iv 
TABLE OF CITATIONS ........................................................................................ vi 
STATEMENT OF JURISDICTION..........................................................................1 
STATEMENT OF THE ISSUES...............................................................................2 
STATEMENT OF THE CASE ..................................................................................4 
STATEMENT OF THE FACTS ...............................................................................6 
SUMMARY OF THE ARGUMENT ......................................................................19 
ARGUMENT ...........................................................................................................21 
I.  HLF’S SIXTH AMENDMENT RIGHT TO COUNSEL WAS VIOLATED
WHEN IT WAS TRIED, CONVICTED, AND SENTENCED WITHOUT
LEGAL REPRESENTATION ......................................................................21 
A.  Corporations Have a Sixth Amendment Right to Counsel and Denial of
that Right Requires Reversal ....................................................................21 
B.  HLF was Convicted and Sentenced Without Counsel and Therefore its
Trial is Void ..............................................................................................23 
C.  The Conclusions Set Forth in the May 24, 2010 Order Do Not Remedy the
Violation of HLF’s Sixth Amendment Right to Counsel.........................27 
1.  HLF’s Interests Were Not “Adequately Represented” .........................28 
2.  There is no Legal Basis for a Finding of “De Facto” Legal
Representation ......................................................................................36 
II.  EVEN IF HLF HAD “DE FACTO” LEGAL REPRESENTATION, ITS
SIXTH AMENDMENT RIGHTS WERE STILL VIOLATED ...................43 
A.  The Failure to Conduct a Rule 44 Inquiry Violated HLF’s Sixth
Amendment Right to Conflict-Free Counsel ...........................................44 
B.  HLF’s “De Facto” Legal Representation Was Ineffective and Violated
HLF’s Right to Effective Assistance of Counsel .....................................50 
III.  HLF’S SIXTH AMENDMENT RIGHT UNDER THE CONFRONTATION
CLAUSE WAS VIOLATED WHEN IT WAS TRIED, CONVICTED, AND
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SENTENCED WITHOUT LEGAL REPRESENTATION ..........................55 


IV.  HLF’S DUE PROCESS RIGHTS WERE VIOLATED WHEN IT WAS
TRIED, CONVICTED, AND SENTENCED IN ABSENTIA .....................58 
V.  HLF WAS DENIED ITS RIGHTS UNDER FEDERAL RULE OF
CRIMINAL PROCEDURE 43 TO BE PRESENT AT CRITICAL STAGES
OF ITS TRIAL WHEN IT WAS NOT REPRESENTED BY COUNSEL ..60 
A.  HLF’s Rule 43 Rights Were Violated when it Was Not Present at Trial
Because It Was Not Represented by Counsel ..........................................61 
B.  The Denial of HLF’s Rule 43 Rights Was Not Harmless Error ..............62 
VI.  IN THE ALTERNATIVE, HLF IS ENTITLED TO REVERSAL BASED ON
THE ARGUMENTS RAISED BY CO-DEFENDANTS-APPELLANTS
BAKER, ELASHI, AND ABDULQADER ..................................................63 
CONCLUSION ........................................................................................................64 
CERTIFICATE OF SERVICE ................................................................................66 
CERTIFICATE OF COMPLIANCE .......................................................................67 

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TABLE OF CITATIONS

Cases 

104 F.3d 566, 568 (3d Cir. 1996).......................................................... 42, 43, 44, 52

315 F.3d 491, 492(5th Cir. 2002) ............................................................................59

443 F.3d 180, 184 (2d Cir. 2006)...................................................................... 45, 46

Aerojet-General Corp. v. Askew, 511 F.2d 710, 719 (5th Cir. 1975) ......................39

Baty v. Balkcom, 661 F.2d 391, 395 (5th Cir. 1981) ........................................ 51, 54

Bisson v. Howard, 224 F.2d 586, 588 (5th Cir. 1955) ...................................... 24, 27

Boim v. Quranic Literacy Ins., 340 F.Supp.2d 885, 897 (N.D.Ill. 2004) ................37

Brecht v. Abrahamson, 507 U.S. 619, 634–37 (1993) .............................................63

Brooks v. Tennessee, 406 U.S. 604, 612–13 (1972) ................................................23

Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001) .......................................... passim

Campbell v. United States, 122 U.S.App.D.C. 143 (1965) .....................................50

Capital Parks, Inc. v. Southeastern Advertising & Sales System, Inc., 30 F3d 627

(5th Cir. 1994) ......................................................................................................41

Carty v. Thaler, 583 F.3d 244, 245 (5th Cir. 2009) .................................................57

Crawford v. Washington, 541 U.S. 36, 63–64 (2004) .............................................61

Cuyler v. Sullivan, 446 U.S. 335, 348 (1980) ................................................... 48, 50

Davis v. Alaska, 415 U.S. 308, 317 (1974) ....................................................... 62, 63


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Donovan v. Road Rangers Country Junction, Inc., 736 F.2d 1004, 1005 (5th Cir.

1984) ....................................................................................................................67

Faretta v. California, 422 U.S. 806, 807 (1975) .....................................................22

Ferguson v. Georgia, 365 U.S. 570, 595–96 (1961) ...............................................23

Ferguson v. United States, 329 F.3d 923, 924 (10th Cir. 1964)....................... 62, 63

Fong Foo v. United States, 369 U.S. 141, 143 (1962) ............................................66

Freeman v. Lester Coggins Trucking, Inc., 771 F.2d 860 (5th Cir. 1985) ..............39

Geders v. U.S., 425 U.S. 80, 92 (1976) ...................................................................23

Gideon v. Wainwright, 372 U.S. 335 (1963) ...........................................................21

Glasser v. United States, 315 U.S. 60, 76 (1932) ................................. 22, 30, 39, 49

Green v. Johnson, 116 F.3d 1115, 1124 (5th Cir. 1997) .................................. 66, 68

Hamilton v. Alabama, 386 U.S. 52, 55 (1961) ........................................................23

Harris v. Day, 226 F.3d 361, 364 (5th Cir. 2000) ...................................................56

Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 412–14 (1984)

..............................................................................................................................66

Herring v. New York, 422 U.S. 853, 864–65 (1975) ........................................ 23, 58

Holy Land Foundation for Relief and Development v. Ashcroft, 219 F.Supp.2d 57

(D.D.C. 2002).......................................................................................................37

Holy Land Foundation for Relief and Development v. Ashcroft, 333 F.3d 156 (D.C.

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Cir. 2003) .............................................................................................................10

Id. .............................................................................................................................44

In Re Grand Jury Proceedings, 469 F.3d 24, 26 (1st Cir. 2006) ............................52

Kentucky v. Stincer, 482 U.S. 730, 745 (1987)........................................................65

Kittelson v. Dretke, 426 F.3d 306, 318 (5th Cir. 2005) .................................... 61, 62

Mancorp, Inc. v. Culpepper, 802 S.W.2d 226 (Tex 1990) ......................................41

Messing v. FDI, Inc., 439 F.Supp. 776, 782 (N.D.J. 1977) .....................................52

Mickens v. Taylor, 535 U.S. 162, 172 (2002) ..........................................................51

Nat’l Dairy Prods. Corp. v. United States, 350 F.2d 321, 327 (8th Cir. 1965) ......29

Pointer v. Texas, 380 U.S. 400, 405 (1965)...................................................... 65, 68

Powell v. Alabama, 287 U.S. 45, 69 (1932) ............................................................58

Rowland v. California Men’s Colony, 506 U.S. 194, 202 (1993) .................... 62, 67

S.A.F.E. Export Co. v. United States, 803 F.2d 696, 700 (Fed. Cir. 1986) .............66

Southwest Exp. Co., Inc. v. I.C.C., 670 F.2d 53, 55–56 (5th Cir. 1982) .................67

Standard Oil Co. of Tex. V. United States, 307 F.2d 120, 127 (5th Cir. 1962) .......53

Standard Oil of Tex. v. U.S., 307 F.2d 120 (5th Cir. 1962) .....................................32

Strickland v. Washington, 466 U.S. 668, 692 (1994) ...................................... passim

Taylor v. Sturgell, 128 S.Ct. 2161, 2173-74 (2004) ................................................39

United States ex rel. Hard v. Davenport, 478 F.2d 203, 211 (3rd Cir. 1972) .........49

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United States v. Alikpo, 944 F.2d 206, 211 (5th Cir. 1991) ............................. 69, 71

United States v. Beltran-Nunez, 716 F.2d 287, 288–90 (5th Cir. 1983)..................70

United States v. Benavides, 596 F.2d 137, 139–40 (5th Cir. 1979) ........................70

United States v. Bigelow, 462 F.3d 378, 380–81 (5th Cir. 2006) ..................... 65, 68

United States v. Cronic, 466 U.S. 648, 649 (1984) .............................. 22, 27, 56, 57

United States v. Empire Packing Co., 174 F.2d 16, 20 (7th Cir. 1949) ..................29

United States v. Gagnon, 470 U.S. 522, 526-27 (1985) ..........................................65

United States v. Gallgher, 856 F.Supp. 295, 299 (E.D.Va. 1994) ..........................29

United States v. Holy Land Foundation, et al., No 09-10560 (5th Cir. Jul. 22, 2009)

................................................................................................................................4

United States v. Infante, 404 F.3d 376, 392 (5th Cir. 2005)....................................54

United States v. Jimenez, 464 F.3d 555, 559 (5th Cir. 2006) ........................... 61, 63

United States v. Lachman, 521 F.3d 12, 21 (1st Cir. 2008).....................................51

United States v. Lyons, 703 F.2d 815, 820–821 (5th Cir. 1983) .............................51

United States v. Novak, 903 F.2d 883, 891 (2d Cir. 1990) ......................................44

United States v. Salado, 339. F.3d 285, 291 (5th Cir. 2003) ...................................51

United States v. Thevis, 665 F.2d 616, 645 n.35 (5th Cir. 1982) ............... 21, 40, 61

United States v. Unimex, Inc., 991 F.2d 546 (9th Cir. 1993)............................. 22, 27

United States v. Wyly, 193 F.3d 289, 302 (5th Cir. 1999) .......................................29

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United States. v. DeBerry 487 F.2d 488 (2nd Cir. 1973) ........................................50

Walker v. Financial Corp. of America, 828 F.2d 579, 584 (9th Cir. 1987) .............60

White v. Maryland, 373 U.S. 59, 60 (1963) (per curiam) .......................................23

Williams v. Kaiser, 323 U.S. 471, 475–476 (1945) .................................................23

Young v. Herring, 938 F.2d, 543, 557 (5th Cir. 1991) ............................................69

Statutes 

18 U.S.C. § 2339B(a)(1) ..........................................................................................11

Rules 

Campbell v. United States, 122 U.S.App.D.C. 143 (1965) .....................................50

Fed. Crim. Pro. R. 44(c)(2) ......................................................................................49

Fed. R. Crim. P. 43(a)(1)–(3) ...................................................................................69

Fed. R. Evid. 804(b)(6) ............................................................................................61

United States ex rel. Hard v. Davenport, 478 F.2d 203, 211 (3rd Cir. 1972) .........50

United States. v. DeBerry 487 F.2d 488 (2nd Cir. 1973) ........................................50

Treatises 

1 Fletcher Cyc. Corp. § 41.10 ........................................................................... 41, 42

1 Fletcher Cyc. Corp. § 43.70 ..................................................................................42

104 F.3d 566, 568 (3d Cir. 1996)................................................................ 43, 44, 52

18 C.J.S. Corporations § 14 .....................................................................................41

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18 C.J.S. Corporations § 17 .....................................................................................41

4 Joel Androphy, White Collar Crime § 41:38 (2d ed., 2010), (“Proposed Jury

Instructions for Defendant”) ................................................................................55

443 F.3d 180, 184 (2d Cir. 2006)...................................................................... 45, 46

Harris v. Day, 226 F.3d 361, 364 (5th Cir. 2000) ...................................................56

Id. .............................................................................................................................44

United States v. Novak, 903 F.2d 883, 891 (2d Cir. 1990) ......................................44

Treatise 

1 Joel Androphy, White Collar Crime §3.5 (2d. ed, 2010) (“Criminal Liability of the

Corporation”); ............................................................................................... 32, 53

Aerojet-General Corp. v. Askew, 511 F.2d 710, 719 (5th Cir. 1975) ......................39

Freeman v. Lester Coggins Trucking, Inc., 771 F.2d 860 (5th Cir. 1985) ..............39

Leslie Eaton, No Convictions in Trial Against Muslim Charity, N.Y. TIMES, Oct. 22,

2007 ......................................................................................................................38

President George W. Bush, Remarks by the President on Financial Fight Against

Terror (Dec. 4, 2001) .............................................................................................9

Taylor v. Sturgell, 128 S.Ct. 2161, 2173-74 (2004) ................................................39

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STATEMENT OF JURISDICTION

Jurisdiction of this Court is invoked under Section 1291, Title 28, United

States Code, as an appeal from a final judgment of conviction and sentence in the

United States District Court for the Northern District of Texas and under Section

3742, Title 18, United States Code, as an appeal of a sentence imposed under the

Sentencing Reform Act of 1984. Notice of appeal was timely filed in accordance

with Rule 4(b) of the Federal Rules of Appellate Procedure.

Jurisdiction in the consolidated appeal of the district court’s order dated May

24, 2010, is invoked under Section 1291, Title 28, United States Code, as an appeal

from an order issued on remand. Notice of appeal was timely filed in accordance

with Rule 4(b) of the Federal Rules of Appellate Procedure.

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STATEMENT OF THE ISSUES

ISSUE ONE:

Whether HLF was denied the right to counsel guaranteed by the Sixth

Amendment to the United States Constitution when it was tried, convicted by a jury,

and sentenced without counsel.

ISSUE TWO:

Whether HLF was denied the right to counsel guaranteed by the Sixth

Amendment because to the extent it had “de facto” legal representation, such

representation was not conflict-free and was ineffective assistance of counsel.

ISSUE THREE:

Whether HLF was denied its rights under the Confrontation Clause of the

Sixth Amendment when it was tried and convicted by a jury without counsel.

ISSUE FOUR:

Whether HLF was denied its right under Rule 43 to be present under the Due

Process clause of the Fifth Amendment when it was tried, convicted by a jury, and

sentenced without counsel.

ISSUE FIVE:

Whether HLF was denied its right to be present at critical stages of its trial

when it was not represented by counsel and had no corporate representative present.
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ISSUE SIX:

Whether in the alternative HLF is entitled to reversal based on the arguments

raised by co-defendant-appellants.

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STATEMENT OF THE CASE

The Holy Land Foundation for Relief and Development (“HLF”) adopts the

Statement of the Case set forth in Defendant-Appellant Elashi’s opening brief,

which correctly sets out the dates of indictment, trial, and conviction of all

defendants.

The Holy Land Foundation adds that on July 20, 2007, the fifth day of voir

dire at the first trial, its counsel withdrew from representing the Holy Land

Foundation, and from that day forward through the remainder of the first trial, the

entirety of the second trial, and sentencing, no counsel entered an appearance on

behalf of HLF. 4 R.1590–1593 [Voir Dire Vol. 5 at 1013-1016] 7 R.9789–9793

[HLF sentencing transcript].

HLF’s notice of appeal was timely filed on June 5, 2009. 3 R.7399–7400 (R.

Exc. Tab 6 at 1–2). On June 12, 2009, the Government moved in the district court

to strike the notice of appeal, and subsequently moved in this Court for a remand of

the case to the district court for an evidentiary hearing. 3 R.7401–7407; United

States v. Holy Land Foundation, et al., No 09-10560 (5th Cir. Jul. 22, 2009). On

September 24, 2009, this Court granted the Government’s request for a remand,

ordering the district court to determine (1) whether HLF was represented at trial, (2)

whether Ranjana Natarajan of the National Security Clinic had the authority to
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represent HLF in its appeal, and (3) the corporate status of HLF at all relevant times.

3 R.7765–7766. The district court held the ordered evidentiary hearing on January

12, 2010. txnd-138723[1] R.170–419 (R. Exc. Tab 5 at 16–18). On May 24,

2010, the District Court issued a written order (the “May 24 Order”), in which the

Court determined that HLF had been “de facto” represented by its co-defendants’

counsel and “exercise[d] its inherent authority” to appoint counsel for HLF, ordering

that this appointment relates back to the date that the notice of appeal was filed.

txnd-138723[1] R.156–158 (R. Exc. Tab 7 at 1). On June 7, 2010, HLF filed a

timely notice of appeal regarding certain determinations by the district court in the

May 24 Order. txnd-13872[1] R.165.

The Government has also filed a separate appeal of that order, which will be

briefed separately. Supp. Holyland R.187–188 and HLF will address those

arguments as a cross-appellee. On August 6, 2010, this Court consolidated the

related appeals. Supp. Holyland R.190–192.

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STATEMENT OF THE FACTS

The Holy Land Foundation for Relief and Development (“HLF”) adopts the

Statement of Facts as set forth by Defendant-Appellant Elashi in his opening brief to

the extent that it discusses the general history of the Israeli-Palestinian conflict and

HLF’s charitable activities related to individuals affected by that conflict. HLF

adds the following context regarding its history as an organization and its efforts to

comply with the law once Hamas was designated as a terrorist organization in 1995.

Assertions in this statement cite to the Record on Appeal (ROA)1 wherever

possible, but also rely on other publicly available sources, as without counsel to act

on its behalf, many facts specifically relevant to HLF were not developed below.

From its founding in 1989 until it was shut down in December 2001, HLF was

an American charitable foundation that worked to foster peace and that opposed

terrorism in any form. Originally incorporated as a non-profit charity under the

laws of California, HLF’s principal place of business for most of its existence was in

1 Citations to the record on appeal ("R.") are in the following format: The first number
represents the "Holyland" folder number in the electronic record provided to counsel. The second
number represents the "USCA5" number in the lower right-hand corner of each page of the
electronic record.

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Richardson, Texas, where it moved in 1992 along with its co-founders, Shukri Abu

Baker and Ghassan Elashi. 4 R.4189–4200.

Throughout the 1990’s, HLF gained in stature and donations, eventually

becoming the largest Muslim charity in the United States, with satellite offices in

California, Illinois and New Jersey. 4 R.4189–4196. In the year prior to its

closure, HLF had collected over $13 million in donations to support its charitable

work for needy people throughout the world, including most prominently the

Palestinian people living under Israeli occupation in Gaza and the West Bank. Id.

Additional projects, unrelated to conditions in the occupied territories, included

organizing aid to victims of the September 11, 2001 terrorist attacks, providing

assistance to victims and relief workers at the Oklahoma City bombing site, and to

victims of natural disasters around the globe. See 4 R.4660.

Much of the charity that HLF provided was through “zakat committees,”

which are essentially non-S organizations designed to collect and distribute “zakat,”

which is a type of tithe or religious donation expected of all Muslims. 4

R.3826–3827. While some zakat committees were designated by the United States,

at no time did HLF give to any zakat committee designated as being a terrorist

organization. 4 R.3587; 7 R.9279–9294 (discussing his knowledge of various zakat

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committees, their connections to Hamas, and charitable organizations that were

designated because of these connections).

In 1994, the FBI became interested in HLF’s funding activities, and began

wiretapping its offices pursuant to warrants issued under the Foreign Intelligence

Surveillance Act (FISA). 4 R.4182–4184. Phones in HLF’s offices in Texas,

California, Illinois and New Jersey were bugged, as were the personal phone lines of

some of its officers and directors. Id. Some of the evidence in the underlying

criminal trial came from these wiretaps, and covered activity well before the United

States criminalized the allegedly illegal activities in this case. Id.

In 1995, Hamas—which, at that time, was a functioning political party in the

occupied territories—was formally designated a “specially designated terrorist”

(SDT), essentially making it a crime for any person in the United States to fund that

organization in any way. 7 R.7311.

As covered more fully in Defendant-Appellant Elashi’s statement of facts,

following the designation, many Muslim leaders, including representatives of HLF,

met with officials from various U.S. agencies, in order to discuss how they could

continue to provide charity to the Palestinian people without running afoul of the

new prohibitions. 7 R.7296–7299. In essence, HLF asked for a “white list” of

organizations that the U.S. Government had found to be legitimate, and who could

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legally receive donations, but Government officials refused to provide such a list.

Id. HLF continued to provide assistance only to the organizations, including zakat

committees, that were not designated by the Government on any lists of confirmed

or suspected terrorists.

Despite these efforts, an early morning raid occurred on the offices of HLF, in

which government agents entered HLF’s headquarters in Richardson, Texas, as well

as its satellite offices in California, Illinois and New Jersey, and shut down the entire

enterprise, seizing property and freezing its assets. 4 R.4185–4186. At public

remarks in the Rose Garden later that morning, on December 4, 2001, President

Bush announced the raid, adding: “I am confident that most of the donors to the Holy

Land Foundation, and perhaps even some of the individuals who are associated with

the Foundation, had no idea how its money was being used. They wanted to relive

suffering in the region of the world that has suffered too much. But the facts are

clear, the terrorists benefit from the Holy Land Foundation. And we're not going to

allow it.” President George W. Bush, Remarks by the President on Financial Fight

Against Terror (Dec. 4, 2001) available at

http://georgewbush-whitehouse.archives.gov/news/releases/2001/12/20011204-8.ht

ml.

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Following the raid, HLF retained the law firm of Freedman Boyd to challenge

the Administration’s designation of HLF as a “specially designated global terrorist”

(SDGT) and the freezing of its assets under a blocking order. 3 R.7306–7307.

Because its assets were now controlled by the Government, HLF had to request

permission to pay its attorneys for this work through the Office of Foreign Assets

Control (OFAC). The OFAC procedure for the payment of attorney’s fees

generally required submission of a bill from the law firm, as well as written

authorization from a corporate representative of the blocked entity, in this case HLF,

asking to be permitted to pay the bill. Letters from HLF to OFAC dated throughout

2002, 2003, and 2004, show Ghassan Elashi’s signature as the corporate

representative of HLF requesting payment.

Ultimately, HLF’s efforts to challenge the blocking order and its designation

as a SDT and a SDGT were not successful. Holy Land Foundation for Relief and

Development v. Ashcroft, 333 F.3d 156 (D.C. Cir. 2003).

As HLF pursued the designation litigation, the Government had convened a

grand jury in Dallas, Texas, to investigate HLF, as well as several of its officers and

directors, for criminal activity related to the use of HLF money in the occupied

territories. 4 R.4182–4188. On July 26, 2004, the grand jury returned an

indictment charging HLF and seven individuals (Shukri Abu-Baker, Mohammad

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El-Mezain, Ghassan Elashi, Haitham Maghawri, Akram Mishal, Mufid Abdulqader,

and Abdulraham Odeh) for, among several other statutory violations, conspiring to

provide and providing material support to a foreign terrorist organization, namely,

Hamas, in violation of 18 U.S.C. § 2339B(a)(1). 1 R.8–47.

The Government did not allege that HLF donated money specifically to

Hamas, or to any entity, including zakat committees, designated by the United States

as a confirmed or suspected terrorist organization, or in fact any entity, including

zakat committees, that overtly proclaimed allegiance to Hamas. Rather, the

Government alleged that HLF had given money to zakat committees that were

operating in the occupied territories, knowing that these committees were in fact

controlled by Hamas, despite the fact that the United States had not designated these

committees as such. 4 R.3568–3672.

In response to the indictment, HLF entered an appearance and a plea of not

guilty through its attorneys at Freedman Boyd, which also entered an appearance

and a plea of not guilty for Shukri Abu Baker, who as of December 2001, was the

Chief Executive Officer of HLF. Separate attorneys represented the other

individual defendants. When HLF sought permission from OFAC to pay its

attorney fees for representation in the criminal case, OFAC denied the request and

suggested that HLF set up a defense fund in order to pay its attorneys. Because

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corporate defendants, even if indigent, are not entitled to appointed counsel, the

refusal from OFAC to pay attorney’s fees for the criminal case meant that any

lawyer appearing on behalf of HLF in the criminal trial would not be paid. The

record reveals no challenge from HLF’s counsel to this decision from the OFAC,

either to the trial court in the criminal case, or through other executive channels.

Freedman Boyd continued to represent HLF, along with Mr. Baker,

throughout the pretrial proceedings leading up to the first trial, which began voir dire

on July 16, 2007. Work done for Mr. Baker was billed to the Government under the

procedures of the Criminal Justice Act (CJA). Work done specifically for HLF was

exempted from the firm’s CJA submissions, and remained uncompensated.

txnd-138723[1] R.170.

The representation proceeded in this fashion through all pre-trial preparation

until the second day of voir dire, July 17, 2007, when Government counsel stated

that they were “concerned about the record” in the case as it related to a “conflict of

interest of Shukri Abu Baker and the Holy Land Foundation being represented by

the same counsel.” 4 R.1100–1103. The Government acknowledged that the

defendants had signed written waivers consenting to the representation, but noted

that “we’re uncomfortable that may not be enough to protect the record on conflict,”

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and “we would be more comfortable if the Court questioned the defendants on this

issue.” 4 R.1101.

The district court noted that Federal Rule of Criminal Procedure 44

“contemplate[s] that the Court will directly talk with the defendant about the issue of

multiple representation,” although in this case, because HLF was a “defunct

corporate entity,” the court was “not sure . . . who [would] be the natural person

representative of it” for purposes of a Rule 44 colloquy. 4 R.1102. Counsel for the

Government noted that Ghassan Elashi had signed the written waiver for HLF “a

few months ago,” which counsel noted, “raises another question as to whether or not

there is a conflict with doing that.” Id. at 1103.

The district court asked defense counsel to address this issue, and counsel for

Mr. Elashi reported to the court the following morning that his client would not be

able to speak for HLF because “we don’t know either of the current status of the

Holy Land Foundation, whether it exists even as an entity or Mr. Elashi’s status, if it

does exist.” 4 R.1399. The court noted that this decision many have broader

implications because “I’m inferring from what has been said that there is no natural

person as the representative of the Holy Land Foundation who would be the client

for the attorney who’s representing the Holy Land Foundation.” Id. at 1399–1400.

Counsel for HLF stated simply: “That is correct at this time, Your Honor”, and the

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court noted that it would consider the issue further and “see what I think about

advising the defendants of joint representation.” Id. at 1400.

On July 20, 2007, the day that the district court was planning on introducing counsel

to the venire to inquire about possible bias and/or conflicts, HLF’s counsel raised the

issue again, stating: “Your Honor, all I can say is that if there is no one here to

represent Holy Land since we don’t know exactly what its status is we can’t

represent Holy Land.” 4 R.1590. Counsel for the Government stated that it was

unsure “how we proceed when it comes to Holy Land,” but requested that the court

question Mr. Baker about the joint representation. Id. at 1591. The court and

counsel then engaged in some discussion about whether to question Mr. Baker when

in fact HLF’s counsel had indicated that it was going to withdraw from the joint

representation. Id. at 1591–1592. The discussion ended with HLF’s counsel

stating: “That’s fine with us, if you don’t want to question him [Mr. Baker], your

Honor, but we will withdraw from representing Holy Land at this time. Ms.

Duncan and I will continue to represent Mr. Baker.” Id. at 1592. The court then

moved on to discussing how to update its docket sheet so that it could correctly

identify for the venire which attorney represented which defendant. With regard to

HLF, the court stated: “So I guess on Holy Land, I can simply say that it is

unrepresented.” Id. at 1592–1593.

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No further substantive discussion of how to address this situation appears in

the record.

After the first trial ended in a hung jury, a re-trial was scheduled.

Throughout the pre-trial period of the second trial, the district court took no steps to

ensure that an appropriate agent for HLF was identified and/or notified about the

proceedings, or that it was represented by legal counsel.

At the beginning of the retrial, before the court empaneled the jury,

Government counsel stated that he “wanted to make sure that the jury is aware and

that all parties are aware that the Holy Land Foundation Corporation is a Defendant

and that there will be evidence in that regard,” despite the fact that “the Foundation

has no employees and no officers and so there is no one to represent it.” The court

responded by stating: “All right. And certainly I was aware, and I am sure you will

remind the jury in your opening statements.” 4 R.3534.

Once the jury was brought in, and the indictment read, the court asked each of

the individual defendants to plead guilty or not guilty. After Mr. Abdulqader pled

not guilty, the court explicitly entered a plea on behalf of HLF, noting for the jury

that “the corporation Holy Land Foundation is also [a] named . . . Defendant, as you

heard in the indictment, and we will enter a plea of not guilty for them.” Id. at 3546.

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After the verdict was issued, HLF was then sentenced without counsel. 7

R.9789–9793.

Following HLF’s conviction, which was covered heavily by the media, an

attorney from the National Security Clinic at the University of Texas School of Law

contacted Freedman Boyd inquiring about the trial and asking if the clinic might be

able to help with any appeal. At that point, HLF’s former counsel suggested to the

clinic that it may be able to represent HLF, which had no attorney during the second

trial. 3 R.8134. After that conversation, the clinic attempted to find a person who

could act as a corporate representative for HLF, in order to make the decisions

necessary to pursue an appeal—including whether to hire the clinic, whether to

appeal, and what relief to pursue. Given that the Government had designated HLF

as a global terrorist, and in fact convicted several of the people associated with the

organization for contributing money to terrorists, HLF’s new counsel could find no

person willing to speak as a representative of HLF. 3 R.8202. Despite these

difficulties, counsel filed a timely notice of appeal on behalf of HLF on June 5, 2009.

3 R.7399–7400 (R. Exc. Tab 6 at 1–2). The Government subsequently moved to

strike the notice of appeal, alleging that HLF had not authorized any counsel to

appear on its behalf, or file a notice of appeal. 3 R.7401–7407. At the request of

the Government, this Court remanded the case to the district court for an evidentiary

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hearing to address three issues: whether HLF was represented at trial, whether

Ranjana Natarajan of the National Security Clinic at the University of Texas has the

authority to represent HLF, and HLF’s corporate status at all relevant time. 3

R.7765.

The district court held an evidentiary hearing on January 12, 2010 (the

“Evidentiary Hearing”), in which the court heard from counsel for the Government,

Ranjana Natarajan, Freedman Boyd attorneys, who represented Baker, John Cline,

who represented Elashi, and two witnesses for the Government. txnd-138723[1]

R.170. Testimony established that no attorney appeared on behalf of HLF after the

fifth day of voir dire at the first trial, during the entirety of the second trial or during

the sentencing of HLF. txnd-138723[1] R.271–273 [evidentiary hearing portion

where NH withdrew].

Following the hearing, the district court entered a written order, determining

that HLF’s counsel withdrew on July 20, 2007, that such withdrawal was effective,

that HLF proceeded without counsel, but that HLF’s co-defendants’ counsel

provided “de facto legal” representation, stating “[t]his case presents a unique

situation where the unrepresented corporation was ‘de facto’ represented by its

officers’ and directors’ counsel during trial.” The court also determined that it had

the authority to appoint Ranjana Natarajan as pro bono counsel, and making certain

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findings about HLF’s corporate status. txnd-138723[1] R.145, 153, 156–158 (R.

Exc. Tab 5 at 5, 13, 16–18).

In addition to these findings, the district court further opined that though HLF

did not have counsel, it was afforded “de facto” legal representation by counsel for

Baker, Elashi, and El-Mezain on the basis that the court could disregard the

corporate form, find that the three defendants were HLF’s alter ego and that their

counsel adequately represented HLF’s interests. Id. at Tab 5 at16.

HLF is now appealing the conviction and sentence below as well as certain

findings in the May 24 Order. The Government filed a separate appeal challenging

the district court’s appointment of counsel to represent HLF, and HLF will address

those arguments separately as a cross-appellee in the Government’s cross-appeal.

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SUMMARY OF THE ARGUMENT

In the summer of 2007, the Holy Land Foundation (“HLF”) and several of its

officers and directors were tried for various crimes, including material support for

terrorism. The trial lasted almost two months, thousands of exhibits were

introduced, and the jury deliberated for nineteen days before Judge Fish declared a

mistrial. The retrial began almost a year later and was an equally complex

proceeding—with testimony continuing for almost sixty days, and eight days of

deliberation before the jury reached a verdict. This prosecution was so complex, in

fact, that it has been described as one of the largest terrorism financing case in

United States history.

Through all of these complex proceedings, from opening statements in the

first trial, to opening statements, verdict and sentencing in the second trial, HLF

stood trial with no legal counsel to represent it. The record on this point is clear, as

after the fifth day of voir dire in the first trial, no pleadings were filed on behalf of

HLF, no one attended jury impanelment on behalf of HLF, no opening or closing

argument was made on behalf of HLF, no one cross-examined witnesses or

presented evidence on behalf of HLF, and no one was present for HLF when it was

sentenced.

In a case of this magnitude, with HLF facing thirty-two criminal counts


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relating to terrorism and money laundering, it is inconceivable that a conviction

could be allowed to stand after a trial in which HLF had no legal representation.

Moreover, the district court’s recent determinations issued upon remand do not

remedy the fundamental violation of HLF’s Sixth Amendment and Due Process

rights that occurred. HLF—a charitable organization—cannot have been

“adequately represented” by counsel to its co-defendants, who were the

organization’s officers and directors and with whom HLF had clear conflicts of

interest.

The courts of the United States do not force criminal defendants—even

corporate defendants—to stand trial in absentia with no counsel. A conviction

obtained in this manner violates basic constitutional principles that are the bedrock

of our criminal justice system. The Holy Land Foundation respectfully requests

that its conviction be vacated and the case remanded so that HLF may proceed with

appropriate legal representation.

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ARGUMENT

I. HLF’S SIXTH AMENDMENT RIGHT TO COUNSEL WAS


VIOLATED WHEN IT WAS TRIED, CONVICTED, AND
SENTENCED WITHOUT LEGAL REPRESENTATION

HLF was charged with thirty-two counts of criminal statute violations,

including two counts involving “material support for terrorism.” Despite the

seriousness of the charges, HLF faced two criminal trials and was sentenced without

any legal representation, in blatant violation of its right to counsel under the Sixth

Amendment. The district court’s unprecedented finding that HLF had “de facto”

legal representation does not remedy this fundamental Constitutional error.

Accordingly, reversal is required here.

A. Corporations Have a Sixth Amendment Right to Counsel and


Denial of that Right Requires Reversal

All criminal defendants, including corporate criminal defendants, have a right

to counsel under the Sixth Amendment. See Gideon v. Wainwright, 372 U.S. 335

(1963); United States v. Thevis, 665 F.2d 616, 645 (5th Cir. 1982); see also May 24

Order at 5 (citing United States v. Unimex, Inc., 991 F.2d 546 (9th Cir. 1993) and

Faretta v. California, 422 U.S. 806, 807 (1975)). The denial of the Sixth

Amendment right to counsel is “legally presumed to result in prejudice.” See

Strickland v. Washington, 466 U.S. 668, 692 (1994); see also Glasser v. United

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States, 315 U.S. 60, 76 (1932) (holding the right to counsel is “too fundamental and

absolute to allow courts to indulge in nice calculations as to the amount of prejudice

arising from its denial”).

Indeed, “[t]he presumption that counsel’s assistance is essential requires us to

conclude that a trial is unfair if the accused is denied counsel at a critical stage of his

trial.” United States v. Cronic, 466 U.S. 648, 649 (1984). Thus, it is well

established by the Supreme Court that when counsel is totally absent or prevented

from assisting the accused during a “critical stage of the proceeding,” constitutional

error exists without the need for showing prejudice. Id.; see e.g. Geders v. U.S.,

425 U.S. 80, 92 (1976); Herring v. New York, 422 U.S. 853, 864–65 (1975); Brooks

v. Tennessee, 406 U.S. 604, 612–13 (1972); Hamilton v. Alabama, 386 U.S. 52, 55

(1961); White v. Maryland, 373 U.S. 59, 60 (1963) (per curiam); Ferguson v.

Georgia, 365 U.S. 570, 595–96 (1961); Williams v. Kaiser, 323 U.S. 471, 475–476

(1945).

This Court has similarly concluded that there are certain types of Sixth

Amendment claims, such as the absence or denial of counsel entirely, that will

always result in assumed constitutional violations. See., e.g., Burdine v. Johnson,

262 F.3d 336 (5th Cir. 2001); Bisson v. Howard, 224 F.2d 586, 588 (5th Cir. 1955)

(noting the “well-recognized doctrine” that if an accused is put on trial in a federal

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court without assistance of counsel, the trial is void).

B. HLF was Convicted and Sentenced Without Counsel and


Therefore its Trial is Void

As described above, HLF’s counsel withdrew from their legal representation

of HLF on the fifth day of voir dire in the first trial. See 4 R.1590–1592 (R. Exc.

Tab 9 at 1013–1015). The district court determined that such withdrawal was

effective and that HLF went unrepresented for the remainder of the first trial and for

the entirety of the second trial and sentencing. See txnd-138723[1] R.145, 153, 156

(R. Exc. Tab 5 at 5, 13, 16). The Record on Appeal provides ample demonstration

that HLF was denied legal representation at all critical times during both trials and

sentencing:

(1) Every cover page of the transcripts (volumes 1–37) of the

second trial lists the appearance of individual defendants and their

respective counsel, but HLF does not “appear” as a defendant with

counsel, 4 R.2270–2271, 4 R.2533–2534, 4 R.2859–2860, 4

R.3178–3179, 4 R.3452–3453, 4 R.3531–3532, 4 R.3732–3733, 4

R.3981–3982, 4 R.4147–4148, 4 R.4410–4411, 4 R.4646–4647, 4

R.4753–4754, 4 R.4971–4972, 7 R.5212–5213, 7 R.5470–5471, 7

R.5713–5714, 7 R.5891–5892, 7 R.6115–6116, 7 R.6392–6393, 7

R.6677–6678, 7 R. 6835–6836, 7 R.6995–6996, 7 R.7212–7213, 7


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R.7435–7436, 7 R.7678–7679, 7 R.7927–7928, 7 R.7971–7972, 7

R.8188–8189, 7 R.8430–8431 , 7 R.8563–8564, 7 R.8773–8774, 7

R.8983–8984, 7 R.9134–9135 , 7 R.9310–9311, 7 R.9393–9394, 7

R.9580–9581, 7 R.9822–9823;

(2) no motions or responses to the Government’s motions were

filed on behalf of HLF during the entire second trial and most of the

first trial;

(3) the Substitute Protective Order entered by the district court

on May 7, 2008, permitting defendants’ counsel to review classified

material in the case, specifically lists the names of each defense counsel

for the individual defendants that are entitled to review classified

materials, but HLF’s counsel is not listed, nor is HLF even listed as a

defendant, see 3 R.5644;

(4) no counsel made opening or closing arguments on behalf of

HLF during either trial, see 4 R.3531–3643 (opening statements); 7

R.9393–9767 (closing arguments);

(5) no counsel cross-examined any Government witnesses on

behalf of HLF;

(6) no counsel presented witnesses on behalf of HLF;

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(7) no counsel made any objections on behalf of HLF during the

entire second trial and after the fifth day of voir day dire in the first trial;

(8) no counsel appeared for HLF at the evidentiary motions

hearing or the jury charge conference, see 4 R.3452–3530 (motions

hearing); 7 R.9794–9821 (pretrial conference);

(9) no counsel moved for a mistrial on behalf of HLF, while all

other counsel individually moved for a mistrial on behalf of their

respective clients; and

(10) no counsel appeared for HLF at its sentencing, 7

R.9789-9790.

All of the individual defendants’ counsel actively participated in jury

selection, the evidentiary hearing, cross examination, opening and closing

arguments, and sentencing, but no counsel participated on behalf of HLF in any of

those proceedings during the entire second trial and after the fifth day of voir dire in

the first trial.

Most illustrative, on the first day of voir dire at the second trial, Judge Solis

introduced HLF as a corporate defendant to the jury, noting the counts against HLF.

See 4 R.2275–2278. Then, counsel for the Government introduced themselves,

followed by counsel for each of the individual defendants who introduced

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themselves and stated which individual defendant they represented. No counsel

introduced themselves on behalf of HLF; no counsel said they represented HLF.

Id. at 2280–2282. Later, at the opening of the trial, Judge Solis entered a plea on

behalf of HLF, having been told by the Government counsel that HLF had no one to

represent it. See 4 R.3546 .

There is no doubt here that HLF was tried, convicted and sentenced without

legal representation. Such denial at all critical stages of trial is presumed to result

in prejudice to HLF. See Strickland v. Washington, 466 U.S. 668, 692 (1984);

United States v. Cronic, 466 U.S. 648, 649 (1984). Thus, under the

“well-recognized doctrine” that if an accused is put on trial in federal court without

assistance of counsel, the trial is void, this Court should find the trial of HLF void

and reverse the conviction. See Bisson v. Howard, 224 F.2d 586, 588 (5th Cir.

1955); see also Burdine,262 F.3d at 349; United States v. Unimex, 991 F.2d 546,

547 (9th Cir. 1993) (finding violation of Sixth Amendment right to counsel could

not be harmless error where corporation’s assets were frozen and corporation was

tried without counsel).2

2 Additionally, HLF did not waive its right to counsel. Any waiver of the right to counsel
would have to be knowing, voluntary and intelligent. See Johnson v. Zerbst, 304 U.S. 458, 464
(1938). The Government can show no such waiver here because in fact HLF could only appear in
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C. The Conclusions Set Forth in the May 24, 2010 Order Do Not
Remedy the Violation of HLF’s Sixth Amendment Right to
Counsel

HLF’s Sixth Amendment right to counsel was violated despite the conclusion

set forth in the May 24, 2010 Order that HLF had “de facto” legal representation.

txnd-138723[1] R.159 (R. Exc. Tab 5 at 19). First, the concept of “de facto” legal

representation is not supported in the law and is not applicable here. Second, the

“piercing the corporate veil” doctrine, relied upon by the district court, is not an

appropriate ground for supporting the conclusion that HLF had “de facto” legal

representation. This Court should reject the district court’s determination that HLF

was afforded “de facto” legal representation, including its finding that HLF’s

interests were adequately represented by its co-defendants’ counsel based on

identity of interests.

The district court’s conclusion that HLF had “de facto” legal representation

by its co-defendants’ counsel during both trials was based on finding that the

evidence at trial established that HLF did not operate independently from Baker,

Elashi and El-Mezain, who directed and controlled HLF, and that there was no

practical distinction between the legal defense of Baker, Elashi, and El-Mezain and

court to make such a waiver through licensed counsel. See Rowland v. California Men’s Colony,
506 U.S. 194, 202 (1993).
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the defense of HLF. txnd-138723[1] R.155 (R. Exc. Tab 5 at 15). The court

concluded that in such a situation, it could disregard the legal form of the corporate

entity and view the corporation as the alter-ego of the three defendants. Id. at Tab 5

at 55, n5 (citing alter-ego and veil piercing cases, United States v. Wyly, 193 F.3d

289, 302 (5th Cir. 1999), United States v. Empire Packing Co., 174 F.2d 16, 20 (7th

Cir. 1949), Nat’l Dairy Prods. Corp. v. United States, 350 F.2d 321, 327 (8th Cir.

1965), and United States v. Gallgher, 856 F.Supp. 295, 299 (E.D.Va. 1994)). The

court ultimately concluded that that the attorneys who represented Baker, Elashi,

and El-Mezain “adequately represented the interests of the unrepresented corporate

entity that was operated by those individual co-defendants” from the time of

Freedman Boyd’s withdrawal through sentencing. Id. at Tab 5 at 16.

1. HLF’s Interests Were Not “Adequately Represented”

The district court’s conclusion that HLF’s interests were adequately

represented is essentially an attempt to demonstrate that HLF suffered no prejudice

from the fact that it did not have its own counsel. However, as explained above, the

denial of the Sixth Amendment right to counsel is “legally presumed to result in

prejudice.” Strickland, 466 U.S. at 692; see also Glasser, 315 U.S. at 76 (the right

to counsel is “too fundamental and absolute to allow courts to indulge in nice

calculations as to the amount of prejudice arising from its denial”); Burdine v.

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Johnson, 262 F.3d 336 (5th Cir. 2001). Therefore, the Court need not calculate

whether HLF’s interests were adequately protected as required by the Sixth

Amendment. Indeed, Strickland directs this Court to presume that the denial of

counsel resulted in prejudice to HLF and, therefore reversal is required. See

Strickland, 466 U.S. at 692.

Even if this Court were to engage in such a calculation, it would find that

HLF’s interests were not adequately represented by counsel for Baker, Elashi, and

El-Mezain, for several reasons.

As an initial matter, while HLF was charged with thirty two counts, defendant

El-Mezain was only charged with one count of violating a criminal statute in the

second trial. 3 R.7046–7052 (R. Exc. Tab 2 at xx). Because of that fact,

El-Mezain’s counsel filed a motion to sever El-Mezain’s trial from the joint trial of

the remaining defendants and a motion (later amended) to dismiss the count against

El-Mezain. See Docket 1044, dated 06/10/2008 and Docket 1046, dated

06/11/2008, of the district court docket. Counsel for El-Mezain was concerned

about the “prejudicial spillover” effect that the trial of the other defendants might

have on his own client’s trial. See Docket 1044, dated 06/10/2008, of the District

Court docket. Thus, it can hardly be assumed that HLF’s interests were

“adequately represented” by El-Mezain’s counsel who would have been trying to

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establish to the jury that his client was “in a markedly different position than his

co-defendants,” as he stated in his motion. Id.

Most importantly, HLF was the only corporate defendant, while the others

were individual defendants. Therefore, the only means by which HLF could have

been found criminally liable is if the Government proved all the elements of

corporate criminal liability. Under Texas law, a “corporation will be criminally

liable for the illegal acts of its employees if the employees are acting within the

scope of their authority and their conduct benefits the corporation.” See 1 Joel

Androphy, White Collar Crime §3.5 (2d. ed, 2010) (“Criminal Liability of the

Corporation”); see also Standard Oil of Tex. v. U.S., 307 F.2d 120 (5th Cir. 1962).

Consequently, no counsel pointed out to the jury during opening or closing argument

that in order to find HLF guilty, the jury would have to find that the individual

defendants acted within the scope of their employment and for the benefit of HLF.

See 4 R.3574–3643, 7 R.9512–9577. Specifically, if HLF had counsel at trial, it

could have, like Abdulquader’s counsel did so during opening arguments, tried to

distance itself from the actions of its board and employees, providing a foundation

for the “scope of employment” defense it would make later on, but no counsel made

that argument for HLF. See 4 R.3603–3607. No counsel tried to rebut the

Government’s evidence on this issue or put forth evidence that Baker and Elashi

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acted outside the scope of their employment and for their own benefit, but HLF’s

counsel, if it had been at trial, would have done so.

The district court did not accept the argument that if HLF had counsel it could

have put forth that defense because the court determined that “the circumstances and

the evidence make that defense unlikely,” see txnd-138723[1] R.156 (R. Exc. Tab 5

at 16). But, that rationale is circular. It is precisely because counsel for Baker,

Elashi and El-Mezain were protecting their own clients’ interests and not HLF’s,

that they did not make that argument, rebut the Government’s evidence on this issue

or put forth evidence in support of that defense. Moreover, it would be the height of

unfairness here to speculate in hindsight what HLF’s “counsel” could have done

based on the limited evidence at trial where no counsel was representing HLF’s

interests. Given that HLF did not have counsel, it was impossible for non-existent

counsel to put forth evidence in support of a defense that was available only to HLF

and that would have prejudiced the other defendants.

Contrary to the district court’s determination, the record below is replete with

examples of how HLF’s co-defendants’ counsel did not adequately represent HLF

and how HLF was harmed as a result of going to trial with no counsel:

(1) Arguments to the jury. Counsel for each of the individual

defendants, including Baker and Elashi, stood up before the jury and

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made opening and closing statements about the case. Each counsel

took the opportunity to say something about his/her individual client,

noting that person’s passion for humanitarian activity, and asking the

jury for acquittal. See 4 R.3574–3643, 7 R.9512–9577. HLF made

no opening statement, no closing statement, and no argument to the

jury of any kind. If given that opportunity, HLF could have told the

jury about HLF’s mission and its donors, who contributed money on

the faith that the employees would make legal contributions to further

HLF’s stated mission.

(2) Cross-examination of witnesses. HLF could not

cross-examine the Government’s witnesses because it was not present

in court through counsel.

(3) Forfeiture hearing. No counsel spoke on behalf of HLF

at the forfeiture hearing, however, each of the individual defendants’

counsel spoke at length regarding their individual clients. See 7

R.9848–9849. No counsel presented evidence on behalf of HLF

regarding the effect that the loss of $12.4 million in aid money would

have on the Palestinian people and the fact that this money was donated

for the express purpose of providing humanitarian aid. Individual

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defendants’ counsel made arguments against forfeiture on behalf of

their individual clients, by alleging indigency or that they were

volunteers and never received anything more than a salary for their

work with HLF. Id. at 9855–9859. Counsel for HLF could have

countered Mr. Jack’s assertion that HLF was created for and functioned

as a fundraiser for Hamas, mentioned that HLF was a non-profit

organization that received legitimate donations from donors concerned

with the Palestinian people, and argued that HLF’s board and

employees used donor’s money wrongly.

(4) Sentencing. No counsel showed up to represent HLF at

its sentencing. See 2 R.119 (R. Exc. Tab ?/). Counsel for each of the

individual defendants were present for the sentencing of their

respective clients and, indeed, each counsel took the opportunity to

make argument on behalf of their client and object to the Government’s

argument. See 30 R.150–175 (Elashi), 16 R.373–434 (Baker), 25

R.161–205 (El-Mezain), 36 R.301–349 (Abdulqader), 46 R.157-180

(Odeh). The sentencing transcript for Baker is sixty-two pages long,

while the other individual defendants’ transcripts run from twenty-five

pages to forty-nine pages. Id. The sentencing transcript for HLF is

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five pages long. See 7 R.9789–9793. Clearly, counsel for Baker,

Elashi and El-Mezain were not “adequately representing” HLF’s

interest at sentencing.

(5) Scope of Employment Defense. The Government’s

primary testifying case agent, Lara Burns, testified that Baker, Elashi

and El-Mezain were involved in another organization—the Islamic

Association for Palestine—apart from HLF. 4 R.4205–4208, 4213.

Had HLF had counsel at trial, HLF might have delved further into this

point, using it to argue that the actions of the co-defendants were taken

on behalf of some other organization, not HLF.

(6) Efforts to comply with the law. HLF, if represented by

counsel, could have produced for the jury substantially more evidence

than was presented at the retrial regarding its motives and efforts to

comply with the law. Specifically, HLF had a declaration from its

co-defendant Baker, submitted as a corporate statement in the Ashcroft

designation litigation, and also various documents and at least one

deposition obtained through discovery in a civil lawsuit pending in

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Chicago.3 While HLF does not have access to these documents at this

time, they do appear to support HLF’s basic point– that funneling

money to Hamas would be antithetical to everything HLF stood for.

Finally, the attorneys for Baker, Elashi and El-Mezain themselves did not

believe they were representing HLF after the withdrawal by Freedman Boyd on July

20, 2007. They could have only had their individual client’s interests in mind, not

HLFs, and therefore they could not have been “adequately representing” or

protecting HLF’s interests. As Elashi’s counsel stated at the Evidentiary Hearing:

“I can say that at the time we were trying this case twice, I never thought about the

case from the Holy Land Foundation's standpoint at all. I was thinking about it

purely from Mr. Elashi's standpoint.” txnd-138723[1] R.339 [1/12/10 Tr. at 170].

The record below simply does not support the district court’s conclusion that

Baker, Elashi and El-Mezain were adequately representing HLF’s interests. This

Court should not adopt the conclusion that HLF had “de facto” legal representation.

Indeed, as many examples as counsel can point to here in which trial counsel

for HLF could have made an impact on the proceedings, the fundamental point

remains that even engaging in this exercise threatens to undermine the procedural

3
Holy Land Foundation for Relief and Development v. Ashcroft, 219 F.Supp.2d 57 (D.D.C.
2002); Boim v. Quranic Literacy Ins., 340 F.Supp.2d 885, 897 (N.D.Ill. 2004).
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guarantees in Strickland and Cronic, which promise that defendants need not

demonstrate prejudice in order to find that a denial of counsel violates the Sixth

Amendment. Moreover, this is not a case in which the evidence would have left

little room for defense strategy. Quite to the contrary, the first trial in this case

ended in a hung jury, with multiple jurors committed to voting for an acquittal as to

various defendants, and some jurors expressing in interviews afterward that they

were unimpressed with the Government’s highly circumstantial case on knowledge

and intent. See e.g., Leslie Eaton, No Convictions in Trial Against Muslim Charity,

N.Y. TIMES, Oct. 22, 2007. This is precisely the type of case where counsel is

crucially significant.

2. There is no Legal Basis for a Finding of “De Facto” Legal


Representation

There is no legal basis for applying the concept of “de facto” legal

representation here, or in any case for that matter. No court has ever concluded that

where a criminal defendant is actually unrepresented certain circumstances exist

such that the defendant had “de facto” legal representation. Certainly, no court has

ever held that where a criminal defendant is actually unrepresented that “de facto”

legal representation satisfies the Sixth Amendment right to counsel. There is no

concept in the law such as “de facto” legal representation as demonstrated by the

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absence of law or legal support in the May 24 Order for the notion that “de facto”

legal representation exists or should apply here. 4 There is no precedent to

find—after the fact—that a criminal defendant, who lacked counsel throughout trial,

had “de facto” legal representation based on the presence of his co-defendants’

counsel, because it would undermine a defendant’s fundamental right to counsel

under the Sixth Amendment. See Glasser, 315 U.S. at 76. Moreover, such a

finding would be contrary to well-established law, incentivize lower courts to

disregard this Court’s holding in United States v. Thevis, 666 F.2d 616, 645 (5th Cir.

1982), and establish a different legal standard under the Sixth Amendment for

defendants who had co-defendants, from those who did not.

Additionally, the reliance on a doctrine that is used by courts to find civil

liability, in the case of torts, or criminal liability for a corporate defendant, to support

the conclusion that HLF had legal representation should not be endorsed by this

4 The term “de facto representation,” synonymous with “virtual representation,” is most
commonly used to describe a form of res judicata which binds a person or entity to a previous civil
judgment even though not a party but where their interests were closely aligned with a person or
entity who was a party to the judgment. See, e.g., Aerojet-General Corp. v. Askew, 511 F.2d 710,
719 (5th Cir. 1975). The terms, “de facto representation” and “virtual representation,” do not
refer to legal representation nor are the terms used to convey that a person or entity has had legal
counsel when they have not. See, e.g., Taylor v. Sturgell, 128 S.Ct. 2161, 2173-74 (2004);
Freeman v. Lester Coggins Trucking, Inc., 771 F.2d 860 (5th Cir. 1985). Further, no case has
ever applied “de facto representation” in the res judicata context, or in any context, to a criminal
defendant.
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Court. In the May 24 Order, the district court determined that HLF was “’de facto’

represented during both trials because the merger of certain Defendants’ identities

ensured HLF’s interests were continuously protected from the time of Freedman

Boyd’s withdrawal through sentencing.” txnd-138723[1] R.155 (R. Exc. Tab 5 at

15). The court went on to support its conclusion by pointing to what is commonly

referred to as the “piercing the corporate veil doctrine,” noting that a “court may

disregard the legal fiction of the corporate entity,” and citing “veil piercing” and

alter-ego cases. Id. This doctrine, however, is wholly inapplicable to a Sixth

Amendment claim and cannot, and should not, be used to support a finding of “de

facto” legal representation.

The veil piercing or alter-ego doctrine has never been applied by any court,

other than the court below in this case, to find that a criminal corporate defendant’s

right to counsel under the Sixth Amendment was satisfied. “’Piercing the corporate

veil’ is the judicial act of imposing personal liability on otherwise immune corporate

officers, directors, and shareholders for the corporation's wrongful acts, and certain

elements must be established to do so.” 18 C.J.S. Corporations § 14. “Reverse

piercing of the corporate veil occurs when a claimant seeks to hold a corporation

liable for the obligations of an individual shareholder.” 18 C.J.S. Corporations §

17. Additionally, “[a] finding of fact of alter ego . . . merely furnishes a means for

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a complainant to reach a second corporation or individual upon a cause of action that

otherwise would have existed only against the first corporation. 1 Fletcher Cyc.

Corp. § 41.10 (“An attempt to pierce the corporate veil is a means of imposing

liability on an underlying cause of action”).5 Moreover, because one of the primary

purposes of the corporate form is to insulate shareholders from unlimited liability,

courts generally apply the alter ego rule with great caution and reluctance. Id.6

Thus, there is no support in the law for applying the “veil piercing” or alter-ego

doctrine here where the issue is whether HLF was represented at trial and

sentencing. This Court should not sanction use of such a doctrine as a basis for

finding that a corporate defendant’s Sixth Amendment right to counsel was satisfied.

In fact, there are only a few cases that involve somewhat analogous

circumstances to those here, and in those cases, courts never found that “de facto”

legal representation existed or that a defendant’s Sixth Amendment right to counsel

was protected because his co-defendant’s counsel adequately protected that

defendant’s interest simply through representing his co-defendants. In United

5 See e.g., Capital Parks, Inc. v. Southeastern Advertising & Sales System, Inc., 30 F3d 627
(5th Cir. 1994) (applying Texas law); Capital Parks, Inc. v. Southeastern Advertising & Sales
System, Inc., 30 F3d 627 (5th Cir. 1994); Mancorp, Inc. v. Culpepper, 802 S.W.2d 226 (Tex 1990).
6 In very limited circumstances, the veil piercing or alter-ego doctrine is applied to extend
jurisdiction over a parent corporation for the acts of its subsidiary. See 1 Fletcher Cyc. Corp. §
43.70.
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States v. Cocivera, the CEO/controlling shareholder of six corporations, along with

the corporations themselves, were tried for fraud. 104 F.3d 566, 568 (3d Cir. 1996).

The attorney originally retained by all defendants withdrew five months before the

trial and all defendants were then represented by a court-appointed attorney

(Bergstrom). Id. At trial, at the request of Cocivera and after appropriate inquiry,

the court permitted him to represent himself, appointing Bergstrom as standby

counsel. Id. at 569. The trial court then asked Cocivera if he was representing the

corporate defendants, to which Cocivera responded, “yes,” and the court appeared to

assent. Id.

On appeal, the corporations contended that they did not knowingly or

voluntarily waive their right to counsel. Id. at 571. The court found that because

Cocivera was not a licensed attorney, he could not represent the corporations. Id.

572. Most significant, the court found that the record did not indicate whether

Bergstrom’s status as standby counsel applied to the corporations, id. at 571, and

therefore it had no basis to assume that Bergstrom's participation as standby counsel

on behalf of Cocivera was also on behalf of the corporations. Id. at 573. The

Third Circuit ultimately concluded that despite the presence of Cocivera’s standby

counsel, “standby counsel cannot remedy the absence of counsel.” Id. at 573

(citing United States v. Novak, 903 F.2d 883, 891 (2d Cir. 1990) (holding

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defendant’s Sixth Amendment right violated when it turned out his counsel was not

appropriately licensed and noting that local counsel who was absent for part of trial

could not be deemed “adequate representation”).

Like Cocivera, the instant case involves several defendants that are both

individual defendants and a corporate defendant with a similar owner/director

relationship and allegations of an alter-ego relationship between defendants. See

Id. at 571 (Government argued in Cocivera that CEO effectively ran the

corporations and was their alter ego). The Cocivera holding is instructive: the fact

that one defendant had standby counsel, who was protecting that defendant’s

interest, did not remedy the lack of counsel for the other defendants. Here, the fact

that HLF’s co-defendants’ had counsel does not remedy the fact that HLF did not.

Additionally, the Cocivera court still found no basis to assume that standby counsel

for the individual was also acting on behalf of the corporations, despite the

allegations that the individual defendant was the alter-ego of the corporate

co-defendant. Here, despite the district court’s determination that HLF did not

operate independently from its co-defendants, there is no basis to assume that its

co-defendants’ counsel acted on behalf of both the individuals and HLF during both

trials and sentencing.

In Grace v. Bank Leumi Trust Co. of NY, shareholders initiated an action

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against two corporations and their corporate officers Rosenstock and Genser. 443

F.3d 180, 184 (2d Cir. 2006). Although initially the corporations had separate

counsel from the individual defendants, their law firm had to withdraw midway

through trial. Id. at 184. Counsel for the individual defendants determined that he

had a conflict of interest between the corporations and his individual clients and

therefore he could not represent the corporations. Eventually, default judgment

was entered against the companies which did not have counsel. Id. at 185. The

plaintiffs reached a settlement for separate amounts in damages with one company

(Briggs) and with Rosenstock, who represented himself pro se and who also

purported to be acting on behalf of Briggs. Id.

In a second action, non-parties argued that the initial judgment and settlement

against Briggs should be set aside because it had no legal representation at the time,

because a corporation can only appear through licensed counsel. Id. at 191–92.

On appeal, the Second Circuit found that even if an attorney for Briggs would have

been superfluous and “merely carried out an agreement” already reached by

Rosenstock, that an attorney still could have rendered some assistance, especially

considering the conflict of interests between Rosenstock and the corporation

(Briggs): “It is impossible to know what role an attorney for Briggs would have

played, but it is likely that she would have played some role in the negotiation

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beyond simply passing along information to plaintiffs, especially considering that

Rosenstock and Briggs had conflicting interests.” Id. at 192. As a result, the

court vacated the earlier judgment against Briggs. Id. at 194.

Grace was a mere civil case yet the court reached the same conclusion as in

Cocivera: that the right of a party—even a corporation with co-defendants that are

owners or directors of the corporation—to have its own legal representation is

absolutely fundamental. Grace demonstrates that when an attorney withdraws

from representing a corporation and that corporation goes unrepresented, the

judgment must be reversed even in circumstances where an attorney would have

played a minimal role.7

This Court should not adopt the district court’s determination that HLF had

“de facto” legal representation and reverse the conviction of HLF.

II. EVEN IF HLF HAD “DE FACTO” LEGAL REPRESENTATION, ITS


SIXTH AMENDMENT RIGHTS WERE STILL VIOLATED

In the May 24 Order, the district court determined that HLF did not have legal

7 This is further supported by the fact that in criminal cases, courts have been unwilling to
accept the withdrawal of counsel when the actions of counsel make it difficult for the defendant to
obtain a substitute. See, e.g., Lowenfield v. Phelps, 817 F.2d 285, 289 (5th Cir. 1987) (trial
court’s denial of counsel’s motion to withdraw where procuring substitute counsel would have
caused delay was not an abuse of discretion); United States v. Ruiz, 533 F.2d 939, 940 (5th Cir.
1976) (trial court’s decision to deny counsel’s motion to withdraw was not an abuse of discretion).
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representation but, relying on an inapplicable doctrine and finding that HLF’s

interests were adequately protected by its co-defendants’ counsel, concluded that

HLF had “de facto” legal representation during two criminal trials and sentencing.

txnd-138723[1] R 143-156 (R. Exc. Tab 5 at x). For the reasons explained above,

the court’s finding is not supported by the record, has no basis in law and is

inapplicable here. However, even if this Court adopts the conclusion that HLF had

“de facto” legal representation, its Sixth Amendment right to counsel was still

violated. First, no Rule 44 inquiry was held despite the potential conflict of interest

between Baker and HLF. The failure to conduct a Rule 44 inquiry resulted in actual

conflict that adversely affected HLF’s “de facto” attorney’s performance and

therefore its Sixth Amendment right to conflict free counsel was violated. See

Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). Second, if this Court determines that

HLF was “de facto” represented by its co-defendants’ counsel, it would also have to

find that such “de facto” representation was “effective assistance of counsel” as

required by the Sixth Amendment in order to affirm HLF’s conviction and sentence.

The evidence does not support either ground and therefore, HLF’s Sixth

Amendment right to counsel was violated.

A. The Failure to Conduct a Rule 44 Inquiry Violated HLF’s Sixth


Amendment Right to Conflict-Free Counsel

In order to affirm HLF’s conviction and sentence, this Court must not only
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find that HLF had “de facto” legal representation, it must also find that its Sixth

Amendment right to conflict free counsel was not violated when it was “de facto”

represented by its co-defendants’ counsel. For the reasons below, such a

conclusion is unsupported by the evidence.

The Sixth Amendment guarantees a criminal defendant the right to

conflict-free counsel. See Glasser v. United States, 315 U.S. 60 (1942).

Accordingly, in cases where co-defendants are represented by the same counsel,

“the court must promptly inquire about the propriety of joint representation and must

personally advise each defendant on the right to the effective assistance of counsel,

including separate representation.” Fed. Crim. Pro. R. 44(c)(2).

Here, although this Court’s remand order did not request the lower court to

address Rule 44, the district court determined that a Rule 44 inquiry did not take

place at either trial and that the court never found that HLF knowingly, voluntarily

and intelligently waived its right to separate counsel. txnd-138723[1] R.150 (R.

Exc. Tab 5 at 10). 4 R.1590–1593. Thus, there is no question that a Rule 44 inquiry

did not occur and therefore, no effective waiver of conflict could have occurred

here.8

8 Some courts assume prejudice where no Rule 44 inquiry has taken place. See, e.g., United
States ex rel. Hard v. Davenport, 478 F.2d 203, 211 (3rd Cir. 1972) (citing Campbell v. United
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Although irrelevant to the remand, the district court then went on to determine

that there was no conflict of interest between Baker and HLF from September 2004

until July 20, 2007. Id. However, in analyzing whether HLF was represented, the

court also determined that counsel for Baker, Elashi and El-Mezain together

adequately represented HLF’s interests, thereby making those attorneys “de facto”

counsel for HLF. See txnd-138723[1] R.156 (R. Exc. Tab 5 at 16). Therefore, if

this Court finds that the three individuals’ counsel were HLF’s “de facto” counsel,

then it would also have to find that there was no conflict of interest between HLF and

Baker, HLF and Elashi, and HLF and El-Mezain, otherwise HLF’s right to

conflict-free counsel would have been violated.

In determining whether HLF’s right to conflict-free counsel was violated, this

Court asks whether there was an actual conflict of interest between HLF and its

co-defendants Baker, Elashi, and El-Mezain that adversely affected HLF’s “de

facto” attorneys’ performance. See Cuyler v. Sullivan, 446 U.S. 335, 348 (1980);

see also Mickens v. Taylor, 535 U.S. 162, 172 (2002) (actual conflict of interest

means precisely a “conflict that affected counsel’s performance”) (emphasis in

States, 122 U.S.App.D.C. 143 (1965)). Some courts assume a conflict resulted from joint
representation if no or inadequate inquiry was conducted. Id.; see also United States. v. DeBerry
487 F.2d 488 (2nd Cir. 1973) (reversing convictions of both defendants where one took the stand
and incriminated his codefendant who was represented by the same counsel and the inquiry of the
district court judge insufficient to establish lack of prejudice).
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original).

This Court has found that an actual conflict exists if “counsel’s introduction of

probative evidence or plausible arguments that would significantly benefit one

defendant would damage the defense of another defendant whom the same counsel

is representing.” Baty v. Balkcom, 661 F.2d 391, 395 (5th Cir. 1981) (actual conflict

where if either defendant testified at trial he would implicate the other defendant

while exonerating himself); see also United States v. Lyons, 703 F.2d 815, 820–821

(5th Cir. 1983). Further, the failure of counsel to act on behalf of one defendant to

his detriment because not acting would benefit the other defendant establishes actual

conflict. See United States v. Salado, 339. F.3d 285, 291 (5th Cir. 2003); see also

United States v. Lachman, 521 F.3d 12, 21 (1st Cir. 2008) (where counsel was

representing two corporate defendants and an individual defendant who was

president, chairman, and owner of the corporations, defendant was entitled to new

trial upon a showing that a “plausible alternative defense strategy… was either

foreclosed or inhibited by the joint representation.”).

Here, there can be no doubt that an actual conflict existed between HLF and

Baker, Elashi and El-Mezain that adversely affected the “de facto” representation of

HLF. As explained above, the single most pertinent fact is that HLF was the only

corporate defendant, whereas its co-defendants were individual defendants who

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were its directors and officers.9 As the only corporate defendant, HLF was the only

defendant for which, in order to find guilty, the jury had to find that HLF’s

employees acted within the scope of their employment and for the benefit of HLF.

See 1 Joel Androphy, White Collar Crime §3.5 (2d ed. 2010) (“Criminal Liability of

the Corporation”); Standard Oil Co. of Tex. V. United States, 307 F.2d 120, 127 (5th

Cir. 1962). Thus, HLF was the only defendant that would and could have argued

and introduced evidence that Baker, Elashi and El-Mezain acted outside the scope of

their employment and that such conduct did not benefit HLF. Counsel for Baker,

Elashi, and El-Mezain never would have made that argument because it would have

been detrimental to the clients they believed they were representing. Though the

district court stated that the “circumstances and evidence make that defense

unlikely,” see txnd-138723[1] R.156 (R. Exc. Tab 5 at 16), it is precisely because

HLF didn’t have counsel that there was no evidence to support that defense. There

9 When co-defendants consist of a corporation(s) and its directors and officers, there is a the
serious potential for a conflict of interest. See, e.g., In Re Grand Jury Proceedings, 469 F.3d 24,
26 (1st Cir. 2006) (in analyzing whether the CEO’s attorneys could speak on behalf of the
corporation, the court declared that such a representation would “invite an intolerable conflict of
interests: due to their status as codefendants in the same investigation where codefendants’
interests “frequently diverge”); United States v. Cocivera, 104 F.3d 566 (3d Cir. 1996) (noting
potential conflict of interest in case involving six corporations and their president); Messing v. FDI,
Inc., 439 F.Supp. 776, 782 (N.D.J. 1977) (noting possible conflict between corporation and
director in fraud investigation and ordering that corporation retain independent counsel).
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was no evidence going to the issue of whether the three defendants acted outside the

scope of their employment and to their own benefit because counsel for Baker,

Elashi and El-Mezain did not attempt to introduce any evidence or rebut the

Government’s evidence reading the same because it would have prejudiced their

own cases. Therefore, an actual conflict did exist. See Baty, 661 F.2d 395

(actual conflict exists where “counsel’s introduction of probative evidence or

plausible arguments that would significantly benefit one defendant would damage

the defense of another defendant whom the same counsel is representing”).10

More recently, Government counsel noted the existence of potential conflict:

MS. COWGER: “We do agree that there is a potential conflict. Any


time there is a corporation and its officers that are charged in the same
crime, it could be, as Ms. Natarajan explains in her filing, that the
corporation would say, ‘We are shocked that our officers have done
this. It is not the corporation's acts. It is their acts, and they are outside
the scope of employment and they acted on their own, and we are not
guilty but they may be.’ That is the potential conflict.”

txnd-138723[1] R.284 [1/12/10 Hearing Tr at 115].

Further, such actual conflict adversely affected HLF’s “de facto” attorneys’

10 Moreover, a number of factors exist here that this Court has previously determined help
establish actual conflict: (1) the strong likelihood that counsel for Baker, Elashi and El-Mezain had
confidential information that could have been harmful to HLF; (2) the subject matter of the
multiple representation was the same; and (3) the multiple representations occurred at the same
time. See United States v. Infante, 404 F.3d 376, 392 (5th Cir. 2005) (holding that actual conflict
existed where an attorney represented multiple defendants in separate but substantially related
drug conspiracy charges).
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performance. As detailed above in section I.C.1, counsel for Baker, Elashi and

El-Mezain failed to at all critical times to make motions, present argument, rebut the

Government’s evidence or introduce evidence regarding the scope of employment

and corporate benefit, all of which would have greatly advanced HLF’s defense.

Additionally, HLF’s “de facto” attorneys’ failed to propose a jury instruction

that was more favorable to HLF regarding the standard for corporate criminal

liability. Compare Defendants’ Joint Proposed Jury Instructions, 17 R 389 (R. Exc.

Tab 8 at xxx), to 4 Joel Androphy, White Collar Crime § 41:38 (2d ed., 2010),

(“Proposed Jury Instructions for Defendant”). This failure is directly related to the

inherent conflict between HLF—a corporation—and its co-defendants, who are its

officers.

The failure of HLF’s “de facto” counsel to introduce probative evidence or

make plausible arguments demonstrates actual conflict that adversely affected their

performance, and accordingly, a conflict of interest existed such that HLF’s right to

conflict-free counsel under the Sixth Amendment was violated and the conviction

should be reversed.

B. HLF’s “De Facto” Legal Representation Was Ineffective and


Violated HLF’s Right to Effective Assistance of Counsel

Even if this Court adopts the district court’s unprecedented theory of “de

facto” legal representation, such representation, to the extent it existed, could not
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have been sufficient to satisfy HLF’s Sixth Amendment right to effective counsel

under United States v. Cronic, 466 U.S. 648 (1984) and Strickland v. Washington,

467 U.S. 1267 (1984).

The Strickland standard generally requires a showing that counsel’s

performance was deficient and that the performance prejudiced the defense. Id. at

687; see also Harris v. Day, 226 F.3d 361, 364 (5th Cir. 2000). A showing of

deficiency requires that “counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,”

while prejudice requires showing that counsel’s errors deprived the defendant of a

fair trial, whose result is unreliable. Strickland, 467 U.S. at 687 (emphasis in

original).

As detailed in Section I.B., no counsel acted on HLF’s behalf at all critical

times during the two trials and sentencing. Moreover, HLF’s status as a corporate

defendant required the Government to prove that HLF’s agents acted within the

scope of their employment and to the benefit of HLF, yet no attorney introduced

evidence or attempted to rebut the Government’s evidence on this issue, or make

opening or closing arguments regarding the same. There should be no serious

question that this “performance” was deficient within the meaning of Strickland.

See 467 U.S. at 687; see also Carty v. Thaler, 583 F.3d 244, 245 (5th Cir. 2009).

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The only remaining question is whether HLF can establish that its “de facto”

defense was prejudiced as a result of this deficient performance. Generally, in

situations in which counsel is not present, prejudice is presumed. Cronic, 466 U.S

at 649. In Burdine v. Johnson, the defendant was convicted of capital murder and

sentenced to death. 262 F.3d 336, 338 (5th Cir. 2001). This Court held that the

defendant did not have counsel at every critical stage of a criminal proceeding as

required by Strickland because his court-appointed attorney slept during substantial

portions of his trial. Id. (“We conclude that a defendant’s Sixth Amendment right

to counsel if violated when that defendant’s counsel is repeatedly unconscious

through not insubstantial portions of the defendant’s capital murder trial.). Thus,

prejudice was assumed because defendant’s counsel was not “present” at

defendant’s trial. Burdine, 262 F.3d at 349. Similarly, prejudice should be

presumed here because HLF’s “de facto” counsel failed to be “present” in every

regard at HLF’s trial and sentencing.

If the Court does not presume prejudice here, however, it may find prejudice

because the record shows a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” See

Strickland, 467 U.S. at 694.

As demonstrated in sections I.C.1and II.A, examples abound in the record

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where the “guiding hand of counsel” could have made a difference in the outcome.

See Powell v. Alabama, 287 U.S. 45, 69 (1932). HLF also had no opportunity to

address the jury at all in order to ask for acquittal on the basis that the Government

did not carry its burden in proving that evidence met the corporate criminal liability

standard. Failure to argue to the jury, while not always dispositive in cases

alleging ineffective assistance of counsel, weighs heavily in favor of a finding of

prejudice. See e.g., Herring v. New York, 422 U.S. 853, 862 (1975) ("In a criminal

trial, which is in the end basically a fact finding process, no aspect of such advocacy

could be more important than the opportunity finally to marshal the evidence for

each side before submission of the case to judgment.")

This Court has addressed a situation analogous to the one here. In Catalan v.

Cockrell, two brothers were charged with aggravated assault and tried together.

315 F.3d 491, 492(5th Cir. 2002). On the first day of trial, the lower court became

concerned that both defendants were represented by the same attorney so the court

appointed a new attorney for one of the brothers. Id. That attorney did not request

any extension of the trial in order to prepare, even though the attorney was entitled to

at least 10 days under state law, and in fact spent less than an hour with the defendant

before the trial began. Id. In conducting the trial, the new attorney relied on the

decisions of the previously conflicted attorney, and failed to cross-examine the

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victim about a prior inconsistent statement favorable to his client. Id. This Court

granted habeas relief to Catalan despite the state court’s rejection of his claim

because the violation of the Sixth Amendment was so clear on the facts presented.

Id. at 493.

Here, HLF had counsel that withdrew on the eve of trial based on a potential

conflict, but never received another attorney, and never had the opportunity to

present any defense at all, much less any defense that may have conflicted with

positions favored by its co-defendants.

The fact that counsel for the co-defendants had all entered into a joint defense

agreement is irrelevant to the arguments available to the defendants at trial. Joint

defense agreements are common in cases involving multiple defendants, and serve

primarily to facilitate the exchange of information between counsel for

co-defendants by extending the protections of the attorney-client privilege to those

communications, which otherwise would not be protected. Joint defense

agreements among criminal defendants’ counsel do not bind parties to pursue the

same defense strategy. Walker v. Financial Corp. of America, 828 F.2d 579, 584

(9th Cir. 1987).

Accordingly, to the extent this Court determines that HLF was “de facto”

represented, that representation falls woefully short of anything that would pass

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muster under the Sixth Amendment, and HLF is entitled to a new trial.

III. HLF’S SIXTH AMENDMENT RIGHT UNDER THE


CONFRONTATION CLAUSE WAS VIOLATED WHEN IT WAS
TRIED, CONVICTED, AND SENTENCED WITHOUT LEGAL
REPRESENTATION

Corporate defendants are protected by the Confrontation Clause in the Sixth

Amendment. See United States v. Thevis, 665 F.2d 616, 645 n.35 (5th Cir. 1982),

superseded on other grounds by Fed. R. Evid. 804(b)(6); see also Crawford v.

Washington, 541 U.S. 36, 63–64 (2004). Under the Confrontation Clause, a

corporate defendant has the right to see and rebut the Government’s evidence,

cross-examine adverse witnesses, and present a defense. See Kittelson v. Dretke,

426 F.3d 306, 318 (5th Cir. 2005) (reversing conviction because the trial court

violated the Confrontation Clause when it prevented defendant from pursuing one

line of questioning with Government witnesses relevant to its theory of case);

United States v. Jimenez, 464 F.3d 555, 559 (5th Cir. 2006) (finding violation of

Confrontation Clause when defense counsel was prevented from forcing

Government witness to answer one specific question that related to the witness’s

ability to observe illegal activity witnessed); Ferguson v. United States, 329 F.3d

923, 924 (10th Cir. 1964) (reversing criminal convictions for multiple defendants

because court only allowed one attorney to conduct cross-examinations of

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Government witnesses).

Here, because HLF as a corporate entity could appear only through licensed

counsel, see Rowland v. California Men’s Colony, 506 U.S. 194, 202 (1993), the fact

that it had no counsel at trial effectively precluded HLF from engaging in any

meaningful challenge to the Government’s case and therefore, its Sixth Amendment

right under the Confrontation Clause was violated. See Davis v. Alaska, 415 U.S.

308, 317 (1974) (under Confrontation Clause, jurors are entitled to have the benefit

of defendant’s theory to make informed decisions about witnesses); Kittelson, 426

F.3d at 318 (preventing defendant from presenting defense theory violates

Confrontation Clause); see also Ferguson, 329 F.2d 923.

Confrontation Clause violations are reviewed de novo and require reversal

unless the error is harmless beyond a reasonable doubt. Jimenez, 464 F.3d at 558,

562; see also Brecht v. Abrahamson, 507 U.S. 619, 634–37 (1993). In determining

whether a Confrontation Clause violation requires reversal, this Court only asks

whether the violation could have contributed to the defendant’s conviction. See

Jimenez, 464 F.3d at 562. Further, this Court should assume that the full damaging

potential of cross-examination would be achieved by the defendant. Jimenez, 464

F.3d at 563; see also Davis, 415 U.S. at 317 (refusing to speculate on whether jury

would have accepted a particular defense, but holding jury was entitled to

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presentation of that defense). Here, because HLF’s lack of counsel prevented it

from cross-examining any Government witnesses, or presenting any defense theory

at all, the answer must be yes.

As explained above, HLF was prevented from presenting the theory that, if

any illegal conduct occurred, HLF’s directors and officers acted outside the scope of

employment and to their personal benefit. Specifically, HLF was denied the right

to cross-examine witnesses and to present testimony to support this theory as

demonstrated by the many examples provided above. Additionally, as was the case

in Kittelson and Jimenez, HLF’s case came down to the credibility of the

Government’s witnesses. It is undisputed that HLF never gave money to an

organization designated by law as a terrorist organization. 7 R.8451–8453 [Second

Trial Tr. Vol. 29; 22: 19 – 24: 4]. Therefore, the case turned on whether the jury

believed the Government witnesses who testified that HAMAS’s control of the

organizations donated to by HLF was well known. 7 R.9424–9438 [Second Tr.

Vol. 35, 32-46]. In Kittelson and Jimenez, this Court reversed the convictions

because the inability of the defendants to cross-examine witnesses could have

contributed to each defendant’s conviction. Those cases only involved restrictions

on a single issue or witness. Here, such inability was magnified because HLF was

restricted from addressing any issues and from questioning all witnesses. The

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complete denial of HLF’s right to cross-examine witnesses contributed to HLF’s

conviction, and HLF is therefore entitled to reversal.

IV. HLF’S DUE PROCESS RIGHTS WERE VIOLATED WHEN IT WAS


TRIED, CONVICTED, AND SENTENCED IN ABSENTIA

The Due Process Clause protects the right of a criminal defendant to be

present “whenever his presence has a relation, reasonably substantial, to the fullness

of his opportunity to defend the charge.” Snyder v. Mass., 291 U.S. 97, 105–06

(1934) overruled in part on other grounds by Malloy v. Hogan, 378 U.S. 1 (1964).

Although this due process right does not extend to every facet of a trial, it applies to

all portions of the trial where “a fair and just hearing would be thwarted by [the

defendant’s] absence.” Id. at 108. See also Kentucky v. Stincer, 482 U.S. 730, 745

(1987); United States v. Gagnon, 470 U.S. 522, 526-27 (1985) (due process protects

“some situations where the defendant is not actually confronting witnesses or

evidence against him”); Pointer v. Texas, 380 U.S. 400, 405 (1965) (depriving

accused of right to cross-examine witnesses against him is denial of due process);

United States v. Bigelow, 462 F.3d 378, 380–81 (5th Cir. 2006) (defendant’s due

process right to be present was violated when not present to contest drug-treatment

provision at sentencing); Green v. Johnson, 116 F.3d 1115, 1124 (5th Cir. 1997)

(right to presence can be violated when defendant is absent from hearings and

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conferences if the Snyder test is met).

Although counsel has found no case specifically applying the Snyder test to

corporate defendants, courts have consistently held that the Due Process Clause

applies to corporate as well as individual defendants. See, e.g., Helicopteros

Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 412–14 (1984) (applying Due

Process Clause to limit state courts’ reach of personal jurisdiction to corporate

defendants); Fong Foo v. United States, 369 U.S. 141, 143 (1962) (applying Double

Jeopardy Clause of Fifth Amendment to protect corporate defendant); S.A.F.E.

Export Co. v. United States, 803 F.2d 696, 700 (Fed. Cir. 1986) (applying Due

Process Clause to hold that Government contractors must provide corporations

“notice and opportunity” to refute charge of lack of trustworthiness in contract bid).

Because corporations may appear in court only through licensed counsel, see

Rowland, 506 U.S. at 202, the mere presence of a corporate officer at a trial will not

satisfy due process. See, e.g., Donovan v. Road Rangers Country Junction, Inc.,

736 F.2d 1004, 1005 (5th Cir. 1984) (barring company’s secretary from appearing at

trial on behalf of the corporation because she was not a licensed attorney); Southwest

Exp. Co., Inc. v. I.C.C., 670 F.2d 53, 55–56 (5th Cir. 1982) (rejecting contention that

corporation may enter appearance through its president).

As the district court determined, HLF’s counsel effectively withdrew on July

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20, 2007 and HLF proceeded without counsel for the remainder of the first trial, the

entirety of the second trial and sentencing. Supp. Holyland R.167; 7 R.9789–9793.

[See May 24 Order; see also HLF Sentencing Transcript; Section I.B, supra.]

Because it had no legal counsel, HLF did not have the opportunity to confront

witnesses or be present at sentencing, where its presence through counsel would

have contributed to HLF’s opportunity to defend against the charges. See Snyder,

291 U.S. at 105–06; Pointer, 380 U.S. at 405; Bigelow, 462 F.3d at 380–81. Nor

did HLF have the opportunity to be present through counsel at the initial evidentiary

hearing, other hearings throughout the trial, or the charge conference. Such

absence thwarted a “fair and just” trial as required by Snyder, and HLF is therefore

entitled to reversal. See Green v. Johnson, 116 F.3d 1115, 1124 (5th Cir. 1997).

V. HLF WAS DENIED ITS RIGHTS UNDER FEDERAL RULE OF


CRIMINAL PROCEDURE 43 TO BE PRESENT AT CRITICAL
STAGES OF ITS TRIAL WHEN IT WAS NOT REPRESENTED BY
COUNSEL

The Federal Rules of Criminal Procedure provide that a “defendant must be

present at: (1) the initial appearance, the initial arraignment, and the plea; (2) every

trial stage, including jury impanelment and the return of the verdict; and (3)

sentencing.” Fed. R. Crim. P. 43(a)(1)–(3). Generally speaking, Rule 43 is not

satisfied merely by ensuring that counsel for an individual defendant is present at a

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particular stage of the trial. See, e.g., United States v. Alikpo, 944 F.2d 206, 211

(5th Cir. 1991) (reversing based on a violation of Rule 43, despite the presence of

counsel). An exception exists only for an “organization represented by counsel,”

based on the general rule that a corporation may appear in court only through a

licensed attorney.

The protections provided under Rule 43 are broader than the Due Process

Clause’s right to presence. See Young v. Herring, 938 F.2d 543, 557 (5th Cir.

1991). As a result, Rule 43 is violated when the defendant is denied the opportunity

to be present at any of the portions of trial listed in Rule 43(a), regardless of whether

the Snyder test is met. See id.

A. HLF’s Rule 43 Rights Were Violated when it Was Not Present at


Trial Because It Was Not Represented by Counsel

Freedman Boyd withdrew from representation of HLF on the fifth day of voir

dire of the first trial, and as a result HLF was not present from that day forward. 4

R.1590–1593. As detailed above, it is clear that HLF was unrepresented at all

relevant times identified by Rule 43. See supra Section I.B (HLF absent during

jury impanelment and cross examination of the Government’s witnesses in its

case-in-chief); see also 4 R.2275–2278, 2281–2283 [Second Trial Tr., Vol. 1 at

6-9,11-13] (HLF absent throughout trial); 4 R.3546 [Second Trial Tr., Vol. 6 at 16];

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7 R.9790–9791 [Second Trial Sentencing at1–2] (HLF absent at sentencing); 7

R.9822–9874 [Second Trial Tr., Vol. 37 at 1–53] (HLF absent when verdict read).

Moreover, whether to proceed with certain portions of a trial when the

defendant is not present requires an on-the-record analysis of several factors.

United States v. Benavides, 596 F.2d 137, 139–40 (5th Cir. 1979). Failure to

engage in a Benavides inquiry constitutes reversible error. United States v.

Beltran-Nunez, 716 F.2d 287, 288–90 (5th Cir. 1983) (given the “narrow discretion”

that trial courts have to proceed in a defendant’s absence, failure to engage in the

Benavides inquiry required new trial).

Here, HLF’s absence was involuntary as it had no means of procuring counsel

and securing its presence at trial. In addition, the trial court did not engage in the

Benavides balancing test required in this circuit to proceed in the defendant’s

absence. Reversal is therefore required.

B. The Denial of HLF’s Rule 43 Rights Was Not Harmless Error

In order for the absence of a defendant to be harmless error, a court must “find

beyond a reasonable doubt that the defendant’s absence did not prejudice his

substantial rights.” Alkipo, 944 F.2d at 209 (reversing defendant’s conviction for

heroin possession and related crimes when defendant failed to appear in court on

time, and the court began voir dire without him).

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Like in Alikpo, HLF was not present for most of voir dire in the first trial and

for the entire voir dire of the second trial, its counsel having withdrawn on the fifth

day of the first trial. 4 R.1590–1592 (R. Exc. Tab 9 at 1013–1015); 4 R.2275-2278,

22800–2283. Additionally, as mentioned above, HLF was absent during all of the

enumerated trial portions in Rule 43. As a result, HLF was unable to assert its

interests in opening or closing arguments, or during cross-examination. Here,

because HLF could be present only through licensed counsel, its absence not only

prevented it from providing “meaningful assistance to counsel” but in fact prevented

effective advocacy altogether. Alikpo, 944 F.3d at 30.

As a result, HLF’s right to be present at its own trial was violated under Rule

43 and such denial was not harmless error.

VI. IN THE ALTERNATIVE, HLF IS ENTITLED TO REVERSAL


BASED ON THE ARGUMENTS RAISED BY
CO-DEFENDANTS-APPELLANTS BAKER, ELASHI, AND
ABDULQADER

Pursuant to Fed. R. App. P 28(i), Defendant-Appellant HLF expressly adopts

the following issues and arguments raised in the other Defendant-Appellants’

briefs.:

(1) From Defendant-Appellant Elashi’s brief, HLF adopts

issues one, two, three, four, five, six, seven, and eight.

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(2) From Defendant-Appellant Mufid Abdulqadar’s brief,

HLF adopts issue one.

(3) from Defendant-Appellant Shukri Abu Baker’s brief, HLF

adopts issues seven, eight, and nine.

CONCLUSION

For the foregoing reasons, the defendant-appellant-cross-appellee, HOLY

LAND FOUNDATION FOR RELIEF AND DEVELOPMENT, respectfully

requests that its conviction be vacated and the case be remanded to the district court

for further proceedings in accordance with the Court’s opinion.

Date: October 19, 2010 Respectfully submitted,

___/s/ Kristine A. Huskey______________


KRISTINE A. HUSKEY
Texas Bar No. 24002328

RANJANA NATARAJAN
Texas Bar No. 24071013

H. MELISSA MATHER
Texas Bar No. 24010216
Pending admission in the Fifth Circuit Court
of Appeals

NATIONAL SECURITY CLINIC


UNIVERSITY OF TEXAS SCHOOL OF
LAW
727 East Dean Keeton St.
Austin, TX 78705
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Tel: 512-232-2698
Fax: 512-232-0800
Email: khuskey@law.utexas.edu

On the Brief:
Rachel Anne Fletcher, Law Student
Jonathan Chaltain, Law Student
John Rhoads, Law Student

Attorneys For Defendant-Appellant-Cross-


Appelle, Holy Land Foundation For Relief
And Development

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Case: 09-10560 Document: 00511268197 Page: 79 Date Filed: 10/19/2010

CERTIFICATE OF SERVICE

I, Kristine A. Huskey, certify that today, October 19, 2010, a copy of the

opening brief for defendant-appellant-cross-appellee Holy Land Foundation for

Relief and Development was filed with the Clerk of the Court by using the

Electronic Case Filing (CM/ECF) system, which will send a notice of the electronic

filing to all counsel of record.

___/s/ Kristine A. Huskey


Kristine A. Huskey

Attorney for Defendant-Appellant-


Cross-Appellee, HOLY LAND
FOUNDATION FOR RELIEF AND
DEVELOPMENT

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Case: 09-10560 Document: 00511268197 Page: 80 Date Filed: 10/19/2010

CERTIFICATE OF COMPLIANCE

Pursuant to 5th Cir. R. 32.2.7(c), undersigned counsel certifies that this brief

complies with the type-volume limitations of 5th Cir. R. 32.2.7(b).

1. Exclusive of the portions exempted by 5th Cir. R. 32.2.7(b)(3), this brief

contains 13,232 words printed in a proportionally spaced typeface.

2. This brief is printed in a proportionally spaced, serif typeface using Times

New Roman 14 point font in text and Times New Roman 12 point font in

footnotes produced by Microsoft Office Word 2010 software.

3. Upon request, undersigned counsel will provide an electronic version of this

brief and/or a copy of the word printout to the Court.

4. Undersigned counsel understands that a material misrepresentation in

completing this certificate, or circumvention of the type-volume limits in 5th

Cir. R. 32.2.7, may result in the Court’s striking this brief and imposing

sanctions against the person who signed it.

___/s/ Kristine A. Huskey


Kristine A. Huskey

Attorney for Defendant-Appellant-


Cross-Appellee HOLY LAND
FOUNDATION FOR RELIEF AND
DEVELOPMENT

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Case: 09-10560 Document: 00511269299 Page: 1 Date Filed: 10/19/2010

United States Court of Appeals


FIFTH C IR C U IT
O FFIC E O F TH E C LER K
LYLE W . C A YC E TEL. 504-310-7700
C LER K 600 S. M A ESTR I PLA C E
NEW O R LEA N S, LA 70130

October 20, 2010

Ms. Kristine Anne Huskey


University of Texas School of Law
National Security Clinic
727 E. Dean Keeton Street
Austin, TX 78705-0000

No. 09-10560 Cons/W 08-10664,et. al. USA v. Holy Land Foundation


USDC No. 3:04-CR-240-3
USDC No. 3:04-CR-240-2
USDC No. 3:04-CR-240-4
USDC No. 3:04-CR-240-7
USDC No. 3:04-CR-240-8
USDC No. 3:04-CR-240-1

The following pertains to your brief electronically filed on


October 19, 2010.
You must submit the seven paper copies of your brief required by
5TH CIR. R. 31.1 within 5 days of the date of this notice
pursuant to 5th Cir. ECF Filing Standard E.1.
Failure to timely provide the appropriate number of copies will
result in the dismissal of your appeal pursuant to 5th Cir. R.
42.3.
Sincerely,
LYLE W. CAYCE, Clerk

By:_________________________
Nancy F. Dolly, Deputy Clerk
504-310-7683
cc:
Mrs. Marlo Pfister Cadeddu
Mr. John D. Cline
Ms. Susan Cowger
Mr. Joshua L Dratel
Ms. Theresa M. Duncan
Ms. Nancy Hollander
Mr. James Thomas Jacks
Ms. K.C. Goodwin Maxwell
Ms. Linda Moreno
Mr. Aaron J Mysliwiec
Mr. Ranjana Natarajan
Mr. Joseph Francis Palmer
Mr. Michael E. Tigar
Mr. Gregory Burke Westfall