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Case: 15-10303

Document: 00513142705

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Date Filed: 08/05/2015

NO. 15-10303
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MOHAMMAD EL-MEZAIN
Defendant-Appellant
_________________________________________________
cons. w/15-10304
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ABDULRAHMAN ODEH
Defendant-Appellant
_________________________________________________
cons. w/15-10306
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GHASSAN ELASHI
Defendant-Appellant
_________________________________________________
cons. w/15-10307
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SHUKRI BAKER
Defendant-Appellant
_________________________________________________
cons. w/15-10308
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MUFID ABDULQADER
Defendant-Appellant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION
NOS. 3:13-CV-4302-P, 3:13-CV-4299-P, 3:13-CV-4301-P,
3:13-CV-4303-P, 3:13-CV-4300-P
___________________
BRIEF IN SUPPORT OF APPLICATION
FOR CERTIFICATE OF APPEALABILITY
FOR APPELLANTS
___________________
GARY A. UDASHEN
STATE BAR NO. 20369590
SORRELS, UDASHEN & ANTON
2311 CEDAR SPRINGS RD., #250
DALLAS, TEXAS 75201
(214) 468-8100; (214) 468-8104 (fax)
ATTORNEY FOR DEFENDANTS-APPELLANTS

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CERTIFICATE OF INTERESTED PERSONS


The undersigned counsel of record certifies that the following listed persons
and entities 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.
(a)

Hon. Jorge A. Solis, District Court Judge, Northern District of Texas, Dallas.

(b)

Elizabeth Shapiro, United States Department of Justice, Washington, D.C.

(c)

Joseph F. Palmer, United States Department of Justice, Washington, D.C.

(d)

Gary A. Udashen, 2311 Cedar Springs Road, Suite 250, Dallas, Texas 75201;
Attorney of Record for All Appellants.

/s/ Gary A. Udashen


GARY A. UDASHEN
SORRELS, UDASHEN & ANTON
2311 Cedar Springs Road, Suite 250
Dallas, Texas 75201
(214) 468-8100
(214) 468-8104 (fax)
ATTORNEY OF RECORD

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STATEMENT REGARDING ORAL ARGUMENT


Oral argument is requested. This case raises novel and complicated questions
of fact and law and oral argument will be of assistance to the Court. This is also an
exceptionally important case based on the subject matter of this prosecution and the
public interest in these proceedings.

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TABLE OF CONTENTS

Page
CERTIFICATE OF INTERESTED PERSONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . i
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii-iv
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v-ix
STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-4
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-7
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-9
ISSUE ONE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
The district court could not legitimately and fairly decide Appellants
ineffective assistance of counsel at trial claims without holding an
evidentiary hearing.
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-28
ISSUE TWO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
The district court inadequately and improperly addressed the ineffective
assistance of counsel on appeal claim.
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28-49

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ISSUE THREE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Abdulqader and Odeh received ineffective assistance on appeal based
on the failure of their appellate counsel to argue that the evidence failed
to prove that they knew of the unlawful objective of the conspiracy.
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49-53
CONCLUSION AND PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . 53-54
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

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TABLE OF AUTHORITIES

CASES

Page

Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). . . . . . 12


Aron v. United States, 291 F.3d 708 (11th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . 13
Ashcroft v. Iqbal, 556 U.S. 662 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Barefoot v. Estelle, 463 U.S. 880 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
Bauman v. United States, 692 F.2d 565 (9th Cir. 1982).. . . . . . . . . . . . . . . . . . . . 11
Ben Shou Zhu v. U. S. Dept. of Justice, 246 Fed.Appx. 66 (2nd Cir. 2007) . . . . . 44
Cargle v. Mullin, 317 F.3d 1196 (10th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . 30
Commodity Futures Trading Commission v. International Financial Services, Inc.,
323 F.Supp.2d 482 (S.D.N.Y. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Coppage v. McKune, 534 F.3d 1279 (10th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . 7
Cox v. Barnhart, 345 F.3d 606 (8th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993) . . . . . . . . 26
Dickson v. Quarterman, 453 F.3d 643 (5th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . 8
Evitts v. Lucey, 469 U.S. 387 (1985).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Fagan v. Washington, 942 F.2d 1155 (7th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . 30
Forman v. Pillsbury, 753 F.Supp. 14 (D.D.C. 1990). . . . . . . . . . . . . . . . . . . . . . . 27
Foster v. Johnson, 293 F.3d 766 (5th Cir. 2002) .. . . . . . . . . . . . . . . . . . . . . . . . . . 8
Gideon v. Wainwright, 372 U.S. 335 (1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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Grannis v. Ordean, 234 U.S. 385, 34 S.Ct. 779, 58 L.Ed. 1363 (1914) . . . . . . . . 12
Graves v. Cockrell, 351 F.3d 143 (5th Cir. 2003),
cert. denied, 541 U.S. 1057 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Gregory v. City of Chicago, 394 U.S. 111 (1969). . . . . . . . . . . . . . . . . . . . . . . . . 31
Harvey v. Mark, 352 F.Supp. 285 (D. Conn. 2005) .. . . . . . . . . . . . . . . . . . . . . . . 46
In re Associated Bicycle Services, Inc., 128 B.R. 436 (Bank. N.D. Ind. 1990) . . 43
In re Winship, 397 U.S. 358 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Jackson v. Virginia, 443 U.S. 307 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32, 51
Johnson v. United States, 604 F.3d 1016 (7th Cir. 2010).. . . . . . . . . . . . . . . . . . . 11
Kuhmo Tire Co. v. Carmichael, 526 U.S. 137 (1999). . . . . . . . . . . . . . . . . . . . . . 26
Kyles v. Whitley, 514 U.S. 419 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Linn v. United States, 281 Fed.Appx. 339 (5th Cir. 2008) . . . . . . . . . . . . . . . . . . 42
Lockhart v. Fretwell, 506 U.S. 364 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 30
Lucas v. Chicago Transmit Authority, 367 F.3d 714 (7th Cir. 2004) . . . . . . . . . . 46
McMann v. Richardson, 397 U.S. 759 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Metz v. Shalala, 49 F.3d 374 (8th Cir. 1995) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Miller-El v. Cockrell, 537 U.S. 322 (2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
Monieson v. Commodity Futures Trading Commission,
996 F.2d 852 (7th Cir. 1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950).. . . . . . . . . 12
Nealy v. Cabana, 764 F.2d 1173 (5th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . 30
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Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986).. . . . . . . . 30
Owens v. United States, 551 F.2d 1053 (5th Cir.),
cert. denied, 434 U.S. 848, 98 S.Ct. 155, 54 L.Ed.2d 115 (1977). . . . . . . . . . . . . 11
Passmore v. Estelle, 594 F.2d 115 (5th Cir. 1979) . . . . . . . . . . . . . . . . . . . . . . . . 30
Paz v. Brush Engineered Materials, 555 F.3d 383 (5th Cir. 2009). . . . . . . . . . . . 27
Price v. City of Charlotte, 93 F.3d 124 (4th Cir. 1996) .. . . . . . . . . . . . . . . . . . . . 46
Schriro v. Landrigan, 550 U.S. 465, 127 S. Ct. 1933, 167 L. Ed. 2d 836 (2007). 13
Shaw v. Wilson, 721 F.3d 908 (7th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Showers v. Beard, 635 F.3d 625 (3rd Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . 30
Slack v. McDaniel, 529 U.S. 473 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Smith v. Robbins, 528 U.S. 259 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Stallings v. United States, 536 F.3d 624 (7th Cir. 2008). . . . . . . . . . . . . . . . . . . . 30
Stevens v. Epps, 618 F.3d 489 (5th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Strickland v. Washington, 466 U.S. 668 (1984). . . . . . . . . . . . . . . . . . . 9, 10, 29, 30
Summerlin v. Schiro, 427 F.3d 623 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . 9
Teague v. Scott, 60 F.3d 1167 (5th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Tyger Const. Co., Inc. v. Pensacola Const. Co., 29 F.3d 137 (4th Cir. 1994) . . . 27
United States v. 319.88 Acres of Land, 498 F.Supp. 763 (D. Nev. 1980) .. . . . . . 27
United States v. Batamula, 788 F.3d 166 (5th Cir. 2015) . . . . . . . . . . . . . . . . . . . . 8
United States v. Brown, 727 F.3d 329 (5th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . 50
United States v. Day, 969 F.2d 39 (3rd Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . 12
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United States v. El-Mezain, et al, 664 F.3d 467 (5th Cir. 2011). . . . . . . . . 2, 24, 36
United States v. Gilmer, 793 F.Supp. 1545 (D. Colo. 1992) . . . . . . . . . . . . . . . . . 45
United States v. Grossman, 117 F.3d 255 (5th Cir. 1997) .. . . . . . . . . . . . . . . . . . 31
United States v. Jones, 614 F.2d 80 (5th Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . 44
United States v. McCoy, 410 F.3d 124 (3rd Cir. 2005) . . . . . . . . . . . . . . . . . . . . . 11
United States v. McGrew, 397 Fed. Appx. 87 (5th Cir. 2010) . . . . . . . . . . . . . . . . 9
United States v. Reece, 547 F.2d 432 (8th Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . 45
United States v. Reed, 719 F.3d 369 (5th Cir. 2013). . . . . . . . . . . . . . . . . . . . . 9, 11
United States v. Rodriguez-Hernandez, 197 Fed.Appx. 657 (9th Cir. 2006).. . . . 44
United States v. Schuchmann, 84 F.3d 752 (5th Cir. 1996) .. . . . . . . . . . . . . . . . . 32
United States v. Smith, 13 F.3d 380 (10th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . 44
United States v. Stine, 458 F.Supp. 366 (E.D. Pa. 1978) .. . . . . . . . . . . . . . . . . . . 44
United States v. Sung Bum Chang, 237 Fed.Appx. 985 (5th Cir. 2007) . . . . . . . . 42
United States v. Wright, 24 F.3d 732 (5th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . 32
Upchurch v. Bruce, 333 F.3d 1158 (10th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . 12

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CODES AND RULES


28 U.S.C. 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. 2253(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7
28 U.S.C. 2255. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 11
F. R. App. P. 22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
F. R. Crim. P. 15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
F. R. Evid. 702.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27, 28

MISCELLANEOUS
Blacks Law Dictionary (9th ed. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 43
Merriam-Webster Dictionary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 43

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STATEMENT OF JURISDICTION
Appellants appeal the final order denying their Motions Under 28 U.S.C.
2255 to Vacate, Set Aside or Correct a Sentence By a Person in Federal Custody
entered by the district court on March 30, 2015. (ROA.15-10303.28870-28911).1
Notice of Appeal for all Appellants was filed on April 10, 2015. (ROA.1510303.28914).2 The district court had jurisdiction pursuant to 28 U.S.C. 1331 and
2255. This court has jurisdiction pursuant to 28 U.S.C. 1291 and also 28 U.S.C.
2253(a) if it grants a Certificate of Appealability (COA).
STATEMENT OF ISSUES
1.

The district court could not legitimately and fairly decide Appellants

ineffective assistance of counsel at trial claims without holding an evidentiary


hearing.
2.

The district court inadequately and improperly addressed the ineffective

assistance of counsel on appeal claim.


3.

Abdulqader and Odeh received ineffective assistance on appeal based on the

failure of their appellate counsel to argue that the evidence failed to prove that they
knew of the unlawful objective of the conspiracy.

Record cites throughout this brief are to the record in 15-10303. These particular
documents are also found at the following: ROA.15-10304.840-883; ROA:15-10306.881-924;
ROA.15-10307.881-924; ROA.15-10308.981-1029).
2

Also, ROA.15-10304.884; ROA.15-10306.925; ROA.15-10307.925; ROA.1510308.1030.


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STATEMENT OF THE CASE


I.

Proceedings Below
Appellants were charged with various offenses related to a claim they provided

material support to Hamas.


The first trial of this case ended with a partial verdict October 22, 2007. The
jury acquitted El-Mezain on all charges except Count 1 (conspiracy to provide
material support to Hamas). It initially acquitted Abdulqader on all counts, but one
juror changed her mind when polled and thus the jury hung 11-1 for acquittal on all
counts as to him. The jury hung on all counts as to all other appellants. (3R.5440).
The second trial began on September 22, 2008. After six weeks of evidence and
nine days of deliberations, the jury found Appellants guilty on all counts in which they
were charged. (3R.7079)
All Appellants timely appealed. On December 3rd and 27th, 2011, the Court
of Appeals issued its decision affirming all convictions and sentences. United States
v. El-Mezain, et al, 664 F.3d 467 (5th Cir. 2011). A Petition for Writ of Certiorari
was filed and denied on October 29, 2012.
On October 25, 2013, all Appellants filed their Motion Under 28 U.S.C. 2255
to Vacate, Set Aside, or Correct Sentence By A Person In Federal Custody.
(ROA.15-10303.27996-28022).3 On March 30, 2015, the district court denied the
3

ROA.15-10304.6 et. seq.; ROA.15-10306.6 et. seq.; ROA.15-10307.6 et. seq.; ROA.1510308.7 et. seq.
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motions and denied a certificate of appealability. (ROA.15-10303.28870-28911). All


Appellants gave timely notice of appeal.
II.

Statement of Facts
HLF was a charitable organization. Although HLF distributed humanitarian

aid in the United States and other countries, its primary mission was providing
assistance to Palestinians living under Israeli occupation in the West Bank and
Gaza.
HLF distributed humanitarian aid to Palestinians through local charitable
organizations known as zakat committees. These transactions formed the basis of
the charges. The government did not contend that HLF provided funds directly to
Hamas or that its funds were used (or intended to be used) to support suicide
bombings or other violence. R a t h e r , the government's theory was that Hamas
controlled the zakat committees that HLF used and that by distributing
humanitarian aid through those committees, HLF helped Hamas win the "hearts and
minds" of the Palestinian people.
Baker, Elashi and El-Mezain held various positions in HLF. Odeh ran HLFs
New Jersey office from early 1994 until the organization closed. Abdulqader
belonged to a band that performed at HLF events (among other places), and he
sometimes served as a volunteer for the organization.
The United States first banned financial support for Hamas on January 25,
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1995. Prior to this date, it was not illegal to provide support to Hamas. Beginning
with the designations of Hamas and others in January 1995, the Treasury Department
maintained a public list of all designated persons and entities. The list included
persons and entities designated because they were determined to be owned or
controlled by, or to act for or on behalf of Hamas. Hamas and several Hamas
officials appeared on the Treasury Department list. But the government never
designated any of the zakat committees, or anyone connected with the zakat
committees. Nevertheless, the Appellants were convicted based on providing funds
to the zakat committees.
SUMMARY OF THE ARGUMENT
The charges against the Appellants in this case all revolve around the claim that
by giving money to the Palestinian zakat committees, they were, in reality, giving
money to Hamas. This contention was made despite the fact that the government
agrees that the Appellants did not give any money to Hamas. Rather, the claim was
that Hamas controlled the zakat committees. Thus, if the evidence failed to prove
that Hamas controlled the zakat committees, then the Appellants were not guilty.
In both the trial and appellate phase of the proceedings, defense counsel
rendered ineffective assistance in inadequately addressing this fundamental issue.
This failure resulted in an unjust conviction at trial, which was erroneously affirmed
on appeal.
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At trial, defense counsel failed to present available evidence that would have
affirmatively proven that Hamas did not control the zakat committees. This evidence
was the testimony of numerous residents of the West Bank who actually served as
members of the zakat committees. These persons have provided affidavits, which are
part of the record of these 2255 motions, that state that they were members of the
zakat committees, they were not members of Hamas and Hamas did not control the
zakat committees. These affidavits further state that they were never interviewed by
defense counsel and never asked to testify and that they were, and still are, willing to
provide this testimony.
At trial, there were no witnesses from either side who had personal knowledge
of whether Hamas controlled the zakat committees. Rather, the witnesses from both
sides were experts with no personal involvement with the zakat committees. The
witnesses who knew best whether Hamas controlled the zakat committees were the
members of the zakat committees. Yet, none of these people testified. The failure to
call these witnesses constitutes a serious omission by defense counsel.
Despite the record presented to the district court on this 2255 motion, the
district court summarily denied the claim and refused to hold an evidentiary hearing.
These egregiously improper rulings essentially slam the courthouse door on the
Appellants and deny them a fair consideration of their claims.
The request from the Appellants is simple and straightforward. All they ask
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for is an opportunity to prove their claims in an evidentiary hearing. Anything less


than this is a serious departure from the usual fairness of the American criminal
justice system.
In addition to the failure to interview and present evidence from members of
the zakat committees, defense counsel failed to adequately object to testimony from
the governments supposed experts who claimed that Hamas controlled the zakat
committees. While defense counsel did make some objections to this testimony, the
key objection was missed. In fact, these experts had no basis of knowledge and no
factual information that supported their claim that Hamas controlled the zakat
committees. Theirs was an opinion without any factual support, and, had defense
counsel made a proper objection, this opinion very likely have been excluded, or
resulted in a reversal on appeal.
The ineffective assistance from the trial then carried over to the appeal.
Although there was ineffective assistance based on counsels failure to adequately
challenge, at trial, the claim that Hamas controlled the zakat committees, nevertheless
the evidence was legally insufficient to prove this essential fact. Despite this, defense
counsel on appeal failed to make a challenge to the legal sufficiency of the evidence.
This challenge would have consisted of an argument that the evidence at trial failed
to prove that Hamas controlled the zakat committees. While there was evidence that
there were some members of the zakat committees who were sympathetic to Hamas
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or were even members of Hamas, it was equally clear that there were zakat committee
members who were not associated with Hamas and were on the other side of the
Hamas/Fatah divide in the West Bank. There was no evidence that Hamas directed
the activities of the zakat committees or that any person on the zakat committees took
direction from Hamas concerning their work on the committees. A challenge to the
sufficiency of the evidence would have required the Court of Appeals to closely
examine this issue. The result of this would have been a conclusion that the evidence
was legally insufficient to support the verdict.
ARGUMENT
Standard for Issuance of a Certificate of Appealability
Appellants must obtain a Certificate of Appealability in order to appeal the
denial of their 2255 Petition. F. R. App. P. 22. The certificate of appealability should
be granted if the Appellants have made a substantial showing of the denial of a
constitutional right. The certificate should issue if an Appellant has "demonstrate[d]
that his petition involves issues which are debatable among jurists or that the issues
are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537
U.S. 322, 330 (2003); Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008).
Under 28 U.S.C. 2253 and Barefoot v. Estelle, 463 U.S. 880, 893-894 (1983),
a certificate should issue when there is a showing that reasonable jurists could
debate whether (or, for that matter agree that) the petition could have been resolved
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in a different manner or that the issues were 'adequate to deserve encouragement to


proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot,
supra at 893 and n. 4).
The only question before a court is whether it is debatable that a constitutional
violation has occurred, for "a COA determination is a separate proceeding, one
distinct from the underlying merits," Miller-El, 537 U.S. at 340-348. See Graves v.
Cockrell, 351 F.3d 143, 150 (5th Cir. 2003), cert. denied, 541 U.S. 1057 (2004)
("Any doubt regarding whether to grant a COA is resolved in favor of the
petitioner"); Dickson v. Quarterman, 453 F.3d 643, 647 (5th Cir. 2006) (granting
COA after quoting from Miller-El, 537 U.S. at 342): 'The question is the debatability
of the underlying constitutional claim, not the resolution of that debate.") See, Foster
v. Johnson, 293 F.3d 766 (5th Cir. 2002) (granting certificate of appealability on
ineffective assistance ground).
In Stevens v. Epps, 618 F.3d 489 (5th Cir. 2010), the court stated that a habeas
petitioners claim can be debatable even though every jurist of reason might agree,
after the certificate of appealability has been granted and the case has received full
consideration, that the petitioner will not prevail. The court further stated that the
court cannot deny a certificate of appealability because it believes the habeas
petitioner ultimately will not prevail on the merits of his claims. See also, United
States v. Batamula, 788 F.3d 166 (5th Cir. 2015) (granting certificate of appealability
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on ineffective assistance claim); United States v. McGrew, 397 Fed. Appx. 87, 95 (5th
Cir. 2010) (not designated for publication) (granting certificate of appealability and
remanding for evidentiary hearing); United States v. Reed, 719 F.3d 369 (5th Cir.
2013) (granting certificate on ineffective assistance of counsel claim and remanding
for an evidentiary hearing).
ISSUE ONE
The district court could not legitimately and fairly decide Appellants
ineffective assistance of counsel at trial claims without holding an evidentiary
hearing.
ARGUMENT
Ineffective Assistance of Counsel - Governing Law
It is well established that a defendant is entitled to the effective assistance of
counsel as required by the Sixth Amendment to the United States Constitution.
Gideon v. Wainwright, 372 U.S. 335 (1963); McMann v. Richardson, 397 U.S. 759,
771 (1970); Summerlin v. Schiro, 427 F.3d 623 (9th Cir. 2005). Effective assistance
is denied if, counsels representation fell below an objective standard of
reasonableness, and there is a reasonable probability that, but for counsels
unprofessional errors, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668 (1984).
To satisfy the prejudice requirement, the record must demonstrate that, there
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is a reasonable probability that, but for counsels unprofessional errors, the result of
the proceeding would have been different. Strickland, 466 U.S. at 694.

reasonable probability is a probability sufficient to undermine confidence in the


outcome. Id. That is, a criminal defendant alleging prejudice must show that
counsels errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable. Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) (quoting
Strickland, 466 U.S. at 687).
For purposes of this appeal, Appellants will focus on the following two
instances of ineffective assistance of counsel at trial:
a.

Counsel failed to present available evidence that would have

conclusively established that Hamas did not control these zakat committees. This was
evidence from persons serving on the zakat committees and who lived in the
communities where the zakat committees were located.
b.

Defense counsel failed to present a specific objection to the admissibility

of the government witnesses testimony that Hamas controlled the zakat committees
based on the witnesses lack of a factual basis to know whether Hamas controlled the
zakat committees.
The arguments presented by Appellants establish a strong case of ineffective
assistance of counsel. Yet, rather than set this case for an evidentiary hearing and
fully examine the question, the district court summarily denied the claim. As set out
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below, the district court erred in not holding a hearing on this ineffective assistance
of counsel claim.
Necessity of a Hearing
28 U.S.C. 2255 provides that, unless the motion and the files and records of
the case conclusively show that the prisoner is entitled to no relief, the court shall .
. . grant a prompt hearing thereon, determine the issues and make findings of fact and
conclusions of law with respect thereto. See also, Rule 8 of the Rules Governing
Section 2255 Proceedings for the United States District Courts.
In Owens v. United States, 551 F.2d 1053, 1054 (5th Cir.), cert. denied, 434
U.S. 848, 98 S.Ct. 155, 54 L.Ed.2d 115 (1977), this court stated that a district court
in a federal habeas corpus case should not ordinarily attempt to resolve contested
issues of fact without holding an evidentiary hearing. In Bauman v. United States,
692 F.2d 565, 571 (9th Cir. 1982), the court stated that an evidentiary hearing must
be held on a 2255 motion unless viewing the petition against the records, its
allegations do not state a claim for relief or are so palpably incredible or so patently
frivolous as to warrant summary dismissal. See also, United States v. Reed, 719
F.3d 369 (5th Cir. 2013) (vacating district courts order and remanding for
evidentiary hearing); Johnson v. United States, 604 F.3d 1016 (7th Cir. 2010)
(holding evidentiary hearing was required to resolve factual issues); United States v.
McCoy, 410 F.3d 124 (3rd Cir. 2005) (finding evidentiary hearing was necessary).
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In United States v. Day, 969 F.2d 39, 41 (3rd Cir. 1992), the court dealt with
allegations of ineffective assistance similar to those raised here and stated the
following:
We have described the District Courts duty, and our standard of
review, as follows: When a motion is made under 28 U.S.C. 2255 the
question of whether to order a hearing is committed to the sound
discretion of the district court. In exercising that discretion the court
must accept the truth of the movants factual allegations unless they are
clearly frivolous on the basis of the existing record. Further, the court
must order an evidentiary hearing to determine the facts unless the
motion and files and records of the case show conclusively that the
movant is not entitled to relief. . . . Accordingly we review this matter
to determine if the trial court abused its discretion in not ordering a
hearing. Virgin Islands v. Forte, 865 F.2d 59, 62 (3rd Cir. 1989)
(citation omitted). See also Rule 4(b) of the Rules Governing Section
2255 Proceedings.
It is axiomatic that [t]he fundamental requisite of due process of law is the
opportunity to be heard. Grannis v. Ordean, 234 U.S. 385, 394 (1914) (citation
omitted). Such opportunity for hearing should be appropriate to the nature of the
case. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). It
is an opportunity which must be granted at a meaningful time and in a meaningful
manner. Armstrong v. Manzo, 380 U.S. 545, 552 (1965). This requirement of
appropriate procedures has the goal of promoting fairness.
In the case at bar, there are many independent factual issues which make an
evidentiary hearing a necessity. "A federal court must consider whether such a
hearing could enable an applicant to prove the petitions factual allegations, which, if
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true, would entitle the applicant to relief." Schriro v. Landrigan, 550 U.S. 465, 474
(2007).
"The law is clear that, in order to be entitled to an evidentiary hearing,
a petitioner need only allege - - not prove reasonably specific,
nonconclusory facts that, if true, would entitle him to relief. If the
allegations are not affirmatively contradicted by the record and the
claims are not patently frivolous, the district court is required to hold an
evidentiary hearing. It is in such a hearing that the petitioner must offer
proof."
Aron v. United States, 291 F.3d 708, 715 n.6 (11th Cir. 2002) (reversing district
courts denial of 2255 motion).
Under the standards cited above, Appellants have clearly demonstrated that
they are entitled to a hearing on their petitions.
Despite the fact that Appellants raised legitimate claims of ineffective
assistance of counsel that could only be resolved with a hearing, the district court
refused to hold a hearing. Rather, the district court simply denied the petitions,
finding no ineffective assistance of counsel. For the reasons set out below, the
district court erred in both refusing to hold a hearing and denying the ineffective
assistance of counsel claims.
a.

Failure to Present Evidence From Actual Members of the Zakat

Committees.
Defense counsels most significant omission in this case is their failure to
present available testimony from zakat committee insiders on the question of control.
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Evidence was available that would have conclusively established that Hamas
did not control these zakat committees. This evidence was from persons actually on
the zakat committees who lived in the community where the zakat committees were
located. Neither the government or the defense presented any testimony from any
person with actual personal knowledge as to how the committees operated that would
have addressed the question of whether Hamas controlled the committees. The
government did not present any witnesses with the personal knowledge because this
testimony would have been contrary to their argument. The defense attorneys failure
to present this evidence was ineffective assistance of counsel.
Affidavits from the following persons were submitted to the district court.
These affidavits were all notarized according to the laws of Israel and no contention
of inauthenticity has been made. These persons were all members of the zakat
committees named in the indictment during the relevant time period:
-

Muhammad Eed Muhammad Mesk - was a public school teacher and

was library manager of the Al-Anwar Library for Children, a subsidiary of the Islamic
Charity Society of Hebron.
-

Abd-El Azez Magames Abd-El Azez Saafen - was an engineer and

building contractor and was Vice Secretary General and Treasurer and Board Member
of the Islamic Charity Society of Hebron.
-

Hashem Sadek Abd El Fattah Alnatshen - was Chairman of the Chamber

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of Commerce and Industry of Hebron Governance and a member of the Board of


Directors of the Islamic Charity Society of Hebron.
-

Hamzeh Theeb Mustafa Abu-Sbaiha - was a Dean at Al Quds University

and Chairman of the Ramallah Zakat Committee.


-

Ammar Tawfik Ahmad-Badawi Khojiyyeh - was a member of the

Tolkarem Zakat Committee.


-

Ghayyat Raafat Hafez Khairy - was a member of the Ramallah Zakat

Committee.
-

Walid Abdallatif Solayman Abu Libdeh - was a member of the Qalquila

Zakat Committee.
-

Riyad Rashid Hamad Walwil - was a member of Qalqila Zakat

Committee.
-

Abd Al Rahin Mohammad-Radi Taha Hanbali - was Chairman of the

Nablus Zakat Committee.


-

Adil Rifaat Salih Yaeesh - was a member of the Nablus Zakat

Committee.
-

Yasin Ahmad Amin Al-Saadi - was a member of the Jenin Zakat

Committee.
-

Walid Ibrahim Khaled Jarrar - was a member of the Jenin Zakat

Committee.
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Bilal Khamis Yusef Abu-Sofirah - was a member of the Tolkarem Zakat

Committee.
-

Ammar Tawfiq Ahmad - was a member of the Tolkarem Zakat

Committee.
-

Badawi Ayyoub - was a member of the Tolkarem Zakat Committee.

Shaban Mohammad Salem Abu-Atten - was co-founder and member of

the Orphan Care Society in Bethlehem.


-

Hilwa Azmi Mohammad Hermas - was a Director of the Orphan Care

Society of Bethlehem.
These affidavits all state the following:
1.

That the affiant was a member of a particular West Bank zakat

committee.
2.

That this affiant was not associated with Hamas.

3.

Hamas did not control the zakat committee.

4.

That the Committees operated independently of any political party,

including Hamas.
5.

That the witnesses had not been contacted or asked to testify, they would

have testified if asked, and would do so now. (ROA.15-10303.28084-28123, 2873728785).


These affidavits are crucial evidence that go directly to the main issue in the
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case. They demonstrate that persons with personal knowledge should have been
called as witnesses to testify at the trial. Had this occurred, the jury would almost
certainly have found these Appellants not guilty.
It is in the failure to hold an evidentiary hearing and allow Appellants to
present testimony from these witnesses that the district court most egregiously erred.
This testimony went directly to the heart of the case. It is of a nature not presented
by any other witness; that is a person with direct knowledge of whether Hamas
controlled the zakat committees. And, if the jury had heard this testimony, the result
of the trial would have been different. Moreover, these witnesses were available to
testify at the time of this trial. They are available to testify now.
In its response, the government contended that these witnesses will not, and
were not, able or willing to come to the United States to provide testimony.4
However, the only way to determine if the witnesses will provide this testimony is to
set this case for a hearing and give the witnesses the opportunity to come to the
United States to testify or to allow depositions of the witnesses to be taken in their
home country. Speculation as to whether they will testify will be mooted by them
4

See affidavit from Adli Rifaat Salih Yaeesh expressing a willingness to provide
testimony before a United States Court. Same from Abd-Alrahim Mohammad-Radi Taha
Hanbali, Ammar Tawfiq Ahmad-Badawi Ayyoub, Bilal Khamis Yousef Abu-Sofira, Abd-El
Azez Magames Abd-Azez Saafen, Walid Abd-Allatil Solayman Abu-Libdeh, Muhammed Eid
Muhammed Mesk, Hashem Sadek Abd-Elfattah Alnatsheh, Gayyath Rafat Hafez Khayre, Riyad
Rashid Hamad Walwil, Shaban Mohammad Salem Abu-Atten, Hilwa Azmi Mohammad Hermas,
Hamzeh Theeb Mustafa Abu-Sabiha, Walid Khaled Ibrahim Jarrar, Yasin Ahmad Amin AlSaadi. (ROA.15-10303.28084-28123, 28737-28785).
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actually appearing and providing testimony.


The government additionally argues that the decision not to call these witnesses
was a reasonable strategy choice by counsel. However, affidavits have been
submitted by defense counsel Nancy Hollander, Teresa Duncan, John Cline, Linda
Moreno, and Marlo Cadeddu admitting that this was not a strategy decision and
agreeing that the failure to call these witnesses constitutes ineffective assistance.
(ROA.15-10303.28541-28560, 28733).
The question of whether the failure to call these witnesses constitutes
ineffective assistance requires a complete evidentiary hearing where defense counsel,
as well as the witnesses, are allowed to testify.
In rejecting this argument, the district court made several points, none of which
withstand serious scrutiny. First, the district court adopts the governments argument
that the witnesses would not actually provide this testimony in court. However, as
stated previously, the only way to determine this is to set this case for an evidentiary
hearing and allow Appellants the opportunity to present these witnesses. The district
courts order contends that although the witnesses state in their affidavits that they
were always willing to provide their testimony, they do not state that they were
willing to travel to Dallas, Texas for trial, nor do they state they had the required
travel documents. However, that the witnesses state they would be willing to testify
shows a willingness to appear in the necessary forum. Moreover, the law would
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allow depositions of witnesses who were unable to make a personal appearance in


court. See F. R. Crim. P. 15. Additionally, the suggestion that they would need to
demonstrate, in advance of a hearing date, that they had the required travel
documents, is to create an impossible burden. The witnesses cannot apply for the
required travel documents until the district court sets the case for a hearing or
depositions and gives them the basis to make the requests.
Secondly, the district court, in a conclusory fashion, states, Jurors may
therefore have discounted these witnesses testimony that Hamas did not control the
Zakat Committees. While that is certainly possible, it is highly unlikely. The jury
heard from no witness with direct knowledge of whether Hamas controlled the
committees. To dismiss the importance of this evidence with a statement that the jury
may have discounted their testimony is unfair and unreasonable. Appellants
should, at the very least, be given an opportunity to present the witnesses testimony
in order that a true credibility determination be made.
Additionally, the district court quotes from trial counsels Fed. R. Crim. P. 15
motion for deposition of witnesses stating that some witnesses were concerned about
their physical safety and potential government retaliation against them if they
testified. This motion was a broad motion that included several categories of
potential witnesses, some of whom were actually under criminal accusations in the
United States. This motion did not refer to the same witnesses who have provided
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affidavits and this expressed fear had nothing to do with the witnesses Appellants
have identified. In fact, the affidavits from these witnesses show a significant
willingness to provide testimony. It is not an adequate response to Appellants
arguments to say that some other witnesses had a fear for their safety or of
governmental harassment, and therefore no witnesses from the West Bank would ever
testify.
In fact, the Appellants trial motion for deposition of witnesses was denied by
the district court without prejudice to refiling. The district courts order required
defense counsel to specify which witnesses they intended to depose and give more
details on how they intended to pursue these depositions. Defense counsel failed to
renew their request for the depositions by meeting these reasonable requests from the
district court. The reason for the failure to pursue the depositions is that defense
counsel had not made any effort to locate the witnesses to provide this testimony.
Instead, their motion was a pro forma request that was not seriously pursued.
(Documents 324, 335, 344, 354; ROA.15-10303.327, 335, 244, 354, 1010-1016,
1244).
This suggestion from the district court also raises a more fundamental problem.
Is it the position of the district court that witnesses from the West Bank can only be
called by the government and not the Appellants? If a witnesss fear of retaliation by
the United States Government is enough for the court to deny Appellants the
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opportunity to present highly relevant and material witnesses, then whether the court
and jury hear all of the evidence, exculpatory or inculpatory, is left within the sole
control of the United States Government. Such a system surely is offensive to basic
notions of due process and fair play.
Lastly, the district court states, Finally, given the substantial evidence of
Hamass control of the Zakat Committees, El-Mezain, 66 4F.3d at 489, Petitioners
have failed to show that but for counsels failure to call these witnesses, there is a
reasonable probability that the outcome of the trial would have been different. This
statement fails to account for the fact that these witnesses would have been the only
witnesses heard from who had personal knowledge, from actually working at the
zakat committees, as to whether Hamas controlled the committees. Moreover, the
substantial evidence, upon close examination, does not actually prove that Hamas
controlled the zakat committees. (See argument under Issue Two)
This ineffective assistance contention is serious and substantial. Regardless
of the ultimate disposition by this court, no fair minded jurist could conclude that this
is not even a debatable issue and the Appellants were rightly denied the opportunity
to prove their points in an evidentiary hearing.
b)

Failure to object to admissibility of testimony from government

witnesses that Hamas controlled the Zakat Committees based on a lack of factual
basis for the opinion.
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The primary issue in this case was simply whether Hamas controlled the zakat
committees. If the government failed to prove this basic fact, then Appellants were
actually innocent, and certainly not guilty, on all counts of the indictment. Much of
the ineffective assistance revolves around the failure of defense counsel to fully and
adequately address this key point. One way in which defense counsel failed to
provide effective assistance was in not objecting to witnesses expressing an opinion
that Hamas controlled the committees when they had no factual basis for the
testimony.
First, government expert witness Matthew Leavitt testified generally about
Hamas and zakat committees. He admitted he never visited a zakat committee and
acknowledged that none of the zakat committees named in the indictment were ever
on the Treasury Department designation list. Nevertheless, he claimed that Hamas
controlled some of the zakat committees. (ROA.15-10303.18545-18581).
However, as argued previously, even in the light most favorable to the
government, Leavitts testimony failed to provide any information concerning how
the committees operated and how decisions were made. His testimony did not
explain what he meant by saying Hamas controlled some zakat committees.
Moreover, it is obvious that he had no factual basis to provide any testimony
concerning control in the legal and practical sense and was only referring to some
generalized sympathy among some people on the committees with Hamas.
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The second attempt to address this issue came with government witness
Mohamed Shorbagi. He claimed familiarity with various Muslim groups in America
including the Holy Land Foundation and stated that he grew up in Gaza. However,
he has never been to the West Bank where all of these committees were located.
(ROA.15-10303.21528). Shorbagi testified that some of the zakat committees are
controlled by Hamas. (ROA.15-10303.21466-67).
However, the fact that Shorbagis testimony failed to prove the control element
is best illustrated by the fact that the Fifth Circuit on direct appeal found that it was
inadmissible hearsay. The Fifth Circuit opinion stated:
1. Mohamed Shorbagi
Mohamed Shorbagi was a representative of HLF in Georgia who helped
raise funds for the organization. He pleaded guilty in s separate case to
providing material support to Hamas through HLF, and he testified in
the instant case as part of a plea agreement. Shorbagi testified that
Hamas controlled several zakat committees in the West Bank and Gaza
to which HLF donated money. He also identified several people
associated with the committees as Hamas leaders, and he stated that
HLF was a part of Hamas. The defendants challenge this testimony as
improper hearsay, contending that Shorbagi merely repeated what he
had read in newspapers and what he had learned from friends. At one
point during his testimony, the Government asked Shorbagi the basis for
his knowledge, and he responded: It came from newspapers, it came
from leaflets, it came from Hamas - the internet later on in 98, 99, the
website of Hamas, and from also talking among friends. The
defendants based their argument on appeal in large part on this
exchange.
...
Shorbagi expressly testified that Hamas controlled the zakat committees
in Nablus, Jenin, Ramallah, and Hebron, all of which were charged in
the indictment as receiving funds from HLF. Shorbagi may very well
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have personally known that these committees were controlled by Hamas


form his activity in raising money for HLF, from attending conferences
with the individual defendants, and from meeting various Hamas leaders
at the conferences. However, when asked the crucial question as to the
basis for this specific knowledge, Shorbagi gave as examples
newspapers, leaflets, the internet, and friends. These sources
constitute classic hearsay rather than personal knowledge. See, e.g.
Roberts, 397 F.3d at 295 (newspapers are hearsay); United States v.
Jackson, 208 F.3d 633, 637 (7th Cir. 2000) (web postings from the
Internet were inadmissible hearsay). In an effort to rehabilitate
Shorbagis answer, the Government asked if the friends to which
Shorbagi referred were persons who were involved with him in
supporting Hamas and organizations like HLF. But Shorbagis
affirmative response did not transform his apparent reliance on the
statements of others, whether they were similarly situated to him or not,
into personal knowledge. We therefore conclude that Shorbagis
testimony that Hamas controlled the zakat committees was hearsay, and
it was error for the district court to allow it.
664 F.3d at 494-496.
Shorbagis testimony was inadmissible because he had no personal, nonhearsay factual basis for it. More importantly, and not addressed by the Fifth
Circuits opinion, is that he gave no testimony at all laying out a factual basis for
concluding that Hamas controlled any zakat committees. He had no personal
information or knowledge as to how the committees operated or how decisions were
made.
The governments third attempt to establish control of the committees by
Hamas came with the anonymous Israeli witness Avi. It was claimed that Avi was
an expert on Hamas financing through his work with the Israeli Security Agency. His
testimony was essentially that there were known Hamas members who were on the
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zakat committees, sometimes in leadership positions, and that this proved that Hamas
controlled the committees. Like all of the other government witnesses, Avi had never
been to a zakat committee and had no information or knowledge as to how the
committees operated. Avi created a self serving list of criteria, and based on his list
concluded that Hamas controlled these committees. However, even accepting Avis
application of his self created criteria does not show he had any factual basis to claim
that Hamas controlled the zakat committees.
For instance, Avi identified members of Hamas who he said were on the zakat
committees. However, he also said that not all members of the committees were
Hamas members. (ROA.15-10303.22884). On one of the committees there was a
report that said only five out of 16 committee members were Hamas activists.
(ROA.15-10303.23072-73).

Additionally, Avi acknowledged that he has never

been to a zakat committee and never spoken to anyone who received money from a
zakat committee. (ROA.15-10303.22997). In fact, he has never spoken to any
Palestinians about zakat committees. (ROA.15-10303.23002). Avi also admitted that
the committees were always under the control and jurisdiction of either Jordan, Israel
or the Palestinian Authority all of whom are enemies of Hamas.

(ROA.15-

10303.23037-23044).
Avi also admitted that most of the aid from these zakat committees did not go
to what he called special segment persons, such as families of suicide bombers or
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Hamas activists killed by the Israelis. He said,


They are focusing on this. And it is not high percentage. Okay?
(ROA.15-10303.23086).
Ultimately, the government relies on Avis affirmative response to the
following question concerning each of the listed committees:
Q. I am just asking you about whether each of these was controlled
by Hamas or part of the Hamas social wing? (ROA.15-10303.2319596).
A close examination of Avis testimony shows that he had no knowledge or
information as to how the committees operated and based his claim of control on his
conclusion that there were Hamas activists in positions on the committees. His
testimony did no more than the other witnesses to address the question of control
from a legal or practical standpoint.5
Defense counsel did challenge the testimony of the governments expert
witnesses under Rule 702 of the Rules of Evidence, Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U. S. 579 (1993) and Kuhmo Tire Co. v. Carmichael, 526
U.S. 137 (1999). However, a specific challenge to the admissibility of the witnesses
testimony based on a lack of evidentiary basis for an opinion as to whether Hamas

It does not appear that the government relied on any other witnesses in an attempt to
prove control of the zakat committees by Hamas. However, to the extent that there was even a
slight suggestion by any other witnesses that Hamas controlled the committees, the other
witnesses had even less knowledge than these three witnesses.
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controls the zakat committees was not pursued.6


Under Rule 702(b), an expert can only testify if his testimony is based on
sufficient facts or data. See, Forman v. Pillsbury, 753 F.Supp. 14 (D.D.C. 1990)
(court may look behind expert testimony to determine whether it has adequate factual
or scientific testimony); Tyger Const. Co., Inc. v. Pensacola Const. Co., 29 F.3d 137
(4th Cir. 1994) (excluding expert testimony that had no factual support); United
States v. 319.88 Acres of Land, 498 F.Supp. 763 (D. Nev. 1980) (where the opinion
of an expert is based on erroneous assumption of fact or law, the evidence is
incompetent); Paz v. Brush Engineered Materials, 555 F.3d 383 (5th Cir. 2009)
(where an experts opinion is based on insufficient evidence the analysis is
unreliable). In fact, neither Leavitt or Avi had sufficient facts or data to provide
testimony that Hamas controlled these zakat committees. Defense counsels failure
to make this specific objection constitutes ineffective assistance.
The district court rejected this argument in its Memorandum Opinion and
Order. However, the district court missed the point of the argument. The district
court cited the cross-examination of these witnesses by defense counsel and noted
that their testimony was vigorously challenged. However, the district court does
not address Appellants argument that this testimony was inadmissible under Rule

Shorbagi was a lay witness, not an expert witness. His testimony was inadmissible
hearsay, which is the basis on which it was challenged.
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702 of the Rules of Evidence based on the witnesses lack of knowledge as to whether
Hamas actually controlled the zakat committees. The fact that defense counsel
engaged in vigorous cross-examination is really besides the point. These witnesses
had an insufficient factual basis for their testimony and should not have been allowed
to present the testimony at all. The ineffective assistance was in not making this
meritorious objections which would have excluded this testimony entirely.7
The district courts failure to address the actual argument made is disturbing.
Moreover, this is an issue that clearly calls for an evidentiary hearing and the district
court should have held such a hearing. At the very least, this is an issue that is
debatable among reasonable jurists and thus a certificate of appealability should
issue.
ISSUE TWO
The district court inadequately and improperly addressed the ineffective
assistance of counsel on appeal claim.
ARGUMENT
As in the previous issue, the district court rejected the ineffective assistance of

Several defense counsel from trial have also submitted affidavits addressing this
ineffective assistance of counsel claims. Bakers counsel Nancy Hollander and Theresa Duncan
stated that if the record reflects that defense counsel failed to object to conclusory testimony from
several witnesses that Hamas controlled the zakat committees, when the witnesses had no factual
basis for the testimony, then this lack of objection was not the result of any trial strategy.
Abdulqaders defense counsel Marlo Cadeddus affidavit agreed with this point. (ROA.1510303.28541-28560, 28731-33).
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counsel on appeal ground without holding an evidentiary hearing. While a hearing


would be helpful, the ineffectiveness standard on appeal has been met here even
without a hearing.
In their argument to the district court, Appellants submitted that they received
ineffective assistance of counsel on appeal in several ways. However, for purposes
of this appeal, Appellants rely on their argument that it was ineffective for counsel
to not challenge the sufficiency of the evidence on appeal.
Legal Standards for Ineffective Assistance of Counsel on Appeal
The Fifth and Sixth Amendment to the U. S. Constitution require that a
defendant have effective assistance of counsel on his appeal. Evitts v. Lucey, 469
U.S. 387 (1985). Effectiveness of appellate counsel is judged by the Strickland test.
Teague v. Scott, 60 F.3d 1167, 1174 (5th Cir. 1995). Under the Strickland test, it is
not necessary to show the outcome of the appeal would be different. Rather, it must
be shown that the Petitioner received a fair appeal the result of which is worthy of
confidence.
Although appellate counsel is not required to raise every non-frivolous claim
and may be selective in inclusion of issues in order to maximize success, counsel has
an obligation to raise determinative issues. See Smith v. Robbins, 528 U.S. 259
(2000). In this regard, several circuits have held that appellate counsel is ineffective
if counsel fails to raise a claim that qualifies as a dead bang winner. See Upchurch
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v. Bruce, 333 F.3d 1158 (10th Cir. 2003); Cargle v. Mullin, 317 F.3d 1196 (10th Cir.
2003); Fagan v. Washington, 942 F.2d 1155, 1157 (7th Cir. 1991). See also,
Strickland, 466 U.S. at 694; Nealy v. Cabana, 764 F.2d 1173, 1178 (5th Cir. 1985);
Lockhart v. Fretwell, 506 U.S. 364 (1993); Strickland, 466 U.S. at 687; Nix v.
Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986); Kyles v. Whitley, 514
U.S. 419 (1995).
Where a Petitioner alleges ineffective assistance of appellate counsel, the
appellate court first examines the record to see whether counsel omitted significant
and obvious issues and, if so, the court then compares the neglected issues to those
actually raised. Stallings v. United States, 536 F.3d 624 (7th Cir. 2008). If the ignored
issues are clearly stronger than those raised, appellate counsel was deficient. See also
Passmore v. Estelle, 594 F.2d 115 (5th Cir. 1979) (finding appellate counsel
ineffective).
In Showers v. Beard, 635 F.3d 625, 634 (3rd Cir. 2011), the court granted
habeas relief where a court unreasonably determined there was not a reasonable
probability that the outcome would have been different but for the ineffective
assistance of appellate counsel. The Showers court discussed the issue that should
have been raised on appeal and noted that the omitted issue was clearly stronger than
those presented. Id. The court then found prejudice established without a finding
that Showers would definitely have won the appeal had the issue been raised. Id.
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Also notable is the Seventh Circuits recent opinion in Shaw v. Wilson, 721
F.3d 908 (7th Cir. 2013). In that case, the court concluded that the state prisoners
appellate counsel had been ineffective with full cognizance of the high bar faced
by a defendant raising such a claim in federal court in failing to raise an obvious,
nonfrivolous claim that was clearly stronger than the claim actually presented.
Id. at 916.
In the case at bar, ineffective assistance of counsel is established by the failure
of Appellants counsel to challenge the legal sufficiency of the evidence on appeal.
Legal Standard on Sufficiency of Evidence
The Due Process Clause protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged. In re Winship, 397 U.S. 358 (1970). A conviction totally
devoid of evidentiary support violates due process. Gregory v. City of Chicago, 394
U.S. 111 (1969).
In the case at bar, all Appellants timely moved for judgment of acquittal. The
standard of review, therefore, requires the court to view the evidence in the light most
favorable to the jury verdict and affirm if a rational trier of fact could find that the
government proved all essential elements beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307 (1979); United States v. Grossman, 117 F.3d 255 (5th Cir.
1997) (defendants convictions not supported by evidence); United States v.
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Schuchmann, 84 F.3d 752 (5th Cir. 1996) (government failed to prove allegations of
indictment). In reviewing the sufficiency of the evidence, all of the evidence is to be
considered. See Jackson, supra; United States v. Wright, 24 F.3d 732 (5th Cir. 1994)
(court considers countervailing evidence in concluding that evidence is insufficient).
Direction and Control
In order to be guilty of any count in the indictment, the government was
required to prove that Hamas directed or controlled the zakat committees listed in the
indictment. The jury instructions made this clear by stating:
COUNT 1
...
The second element requires you to find that when a defendant
joined the conspiracy to provide material support or resources to a
designated terrorist organization, he did so knowingly. To do so, you
must find beyond a reasonable doubt that (1) the defendant under
consideration agreed to provide material support or resources to Hamas,
...
COUNTS 2 THROUGH 10
The defendants HLF, Shukri Abu Baker, and Ghassan Elashi are
charged in these counts with violating Title 18, United States Code,
Section 2339B. That statute provides, in relevant part, Whoever
knowingly provides material support or resources to a foreign terrorist
organization, or attempts or conspires to do so is guilty of a crime. To
satisfy the requirement that the provision of material support or
resources be made knowingly, a person must have knowledge that the
organization is a designated terrorist organization . . . or that the
organization has engaged or engages in terrorism.
...
Counts 2 through 10 of the Indictment read, in relevant part, as
follows:
. . . the defendants HLF, Shukri Abu Baker, and Ghassan
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Elashi, . . ., did knowingly provide and attempts to provide


material support and resources, as those terms are defined
in Title 18, United States Code, Section 2339A(b), to wit,
currency and monetary instruments, to HAMAS, a
designated Foreign Terrorist Organization, by issuing and
causing to be issued wire transfers in the amounts
indicated, from the defendant HLF bank accounts in the
Northern District of Texas, to the following organizations,
which operated on behalf of, or under the control of,
HAMAS:
...
To find HLF, Shukri Abu Baker, and Ghassan Elashi guilty of the
crimes charged in Counts 2 through 10, you must find that the
government has proven each of the following elements beyond a
reasonable doubt:
First: That the defendant under consideration knowingly
provided, or attempted to provide, the material support
alleged in the count under consideration to Hamas through
the entity listed in that count;
...
You may find that a defendant under consideration provided
material support to Hamas if you find (1) that the entity to which the
defendant provided the support was operating under Hamass
direction or control or if it was organizing, managing, supervising,
or otherwise directing the operation of Hamass personnel or
resources and (2) that the defendant under consideration knew that the
entity to which the defendant made the contribution was operating under
Hamass direction or control or that it was organizing, managing,
supervising, or otherwise directing the operation of Hamass personnel
or resources.
...
COUNT 11
The defendants HLF, Shukri Abu Baker, Ghassan Elashi, Mufid
Abdulqader and Abdulrahman Odeh are charged in Count 11 with the
offense of conspiracy to provide funds, goods and services to a Specially
Designated Terrorist, in violation of Title 50, United States Code,
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Sections 1701 through 1706. In pertinent part, Count 11 reads as


follows:
Beginning from on or about January 25, 1995, and
continuing until the date of the Indictment, in the Dallas
Division of the Northern District of Texas and elsewhere,
the defendants HLF, Shukri Abu Baker, Ghassan Elashi,
Mufid Abdulqader, Abdulrahman Odeh, and others known
and unknown to the Grand Jury, knowingly and willfully
conspired, confederated and agreed to violate Executive
Order 12947, by contributing funds, goods and services to,
and for the benefit of, a Specially Designated Terrorist,
namely HAMAS.
...
You may find that two or more people agreed to violate Executive
Order 12947 if you find that two or more individuals agreed to
contribute funds, goods or services to or for the benefit of Hamas in
violation of that order.
...
COUNTS 12 THROUGH 21
...
To find a defendant guilty of the crimes charged in Counts 12
through 21, you must find that the government has proven each of the
following elements beyond a reasonable doubt:
First: That the defendant under consideration himself, or
by aiding and abetting another defendant or by being aided
or abetted by another defendant, contributed or attempted
to contribute funds, goods, or services to or for the benefit
of Hamas, a Specially Designated Terrorist, by providing
the support listed in the count under consideration to the
entity identified in that count; and
Second: That the defendant under consideration willfully
contributed, or attempted to contribute, the support listed
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in the count under consideration to the entity identified in


that count or that the defendant in question was an officer,
direction, or agent of the Holy Land Foundation and
knowingly participated in that corporations willful
contribution or attempted contribution of the support listed
in the count under consideration to the entity identified in
that count.
...
I instruct you that Hamas has been a Specially Designated
Terrorist since January 23, 1995. Accordingly, you may find that a
defendant under consideration contributed funds, goods, or services to
or for the benefit of a Specially Designated Terrorist if you find (1) that
the entity to which that defendant made the contribution was
operating under Hamass direction or control or if it was
organizing, managing, supervising, or otherwise directing the
operation of Hamass personnel or resources and (b) that the
defendant under consideration knew that the entity to which the
defendant made the contribution was operating under Hamass direction
or control or if it was organizing, managing, supervising, or otherwise
directing the operation of Hamass personnel or resources. (ROA.1510303.8531-8582).
The evidence shows that no funds were sent by the Holy Land Foundation to
Hamas. Rather, the government contended that by sending funds to the listed zakat
committees, the Appellants were sending funds to Hamas. The governments claim
was that Hamas controlled the zakat committees and, as reflected In the jury
instructions, it was necessary for the evidence to prove this element of control in
order for the verdict to be legally valid.
Moreover, the Fifth Circuit Court of Appeals recognized that the primary issue
in the trial was whether Hamas controlled the zakat committees. United States v. ElAppellants Brief - Page 35

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Mezain, et al, 664 F.3d 467 (5th Cir. 2011). The Court stated:
The key issues addressed by the evidence were the connection
between the defendants and Hamas, and Hamass control of the
Zakat Committees.
664 F.3d at 488.
Although the question of Hamass control of the zakat committees was the key
issue in the trial, there was, in fact, very little evidence actually addressing the issue.
This is because neither side called any witnesses who were on the zakat committees,
worked at the committees or had any personal business transactions with the
committees. Thus, there was no evidence at all as to how the zakat committees
operated, how decisions were made, how they received and distributed aid or who
actually controlled or directed the activities of the committees.
Viewing the evidence in the most charitable fashion possible to the government
shows the following: The government presented evidence that some of the defendants
in this case were sympathetic with some of the activities and philosophy of Hamas
and that some of the defendants had connections to Hamas leaders. The government
also presented evidence that some Hamas members and sympathizers were on the
zakat committees. The government additionally offered conclusory statements from
some witnesses claiming that Hamas controlled the zakat committees. However,
these statements were not supported by evidence of actual control or any explanation
of what the witness meant by control.
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In fact, as shown below, conclusory statements of an alleged fact, not supported


by evidence supporting the fact, are not sufficient to prove the fact. Additionally, the
term control has a clear meaning in a variety of legal contexts and the government
witnesses who claim Hamas controlled the zakat committees were not using the word
control in its legal sense.
As explained under Issue One of this brief, the governments unsuccessful
attempts to meet their burden to prove Hamass control of the zakat committees came
from three primary witnesses. Government expert witness Matthew Leavitt testified
generally about Hamas and zakat committees. He admitted he never visited a zakat
committee and acknowledged that none of the zakat committees named in the
indictment were ever on the Treasury Department designation list. Nevertheless, he
claimed that Hamas controlled some of the zakat committees.

(ROA.15-

10303.18545-18581).
However, as argued previously, even in the light most favorable to the
government, Leavitts testimony failed to provide any information concerning how
the committees operated and how decisions were made. His testimony did not
explain what he meant by saying Hamas controlled some zakat committees.
Moreover, it is obvious that he has no factual basis to provide any testimony
concerning control in the legal and practical sense and was only referring to some
generalized sympathy among some people on the committees with Hamas.
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The government next tried to prove control of the zakat committees with
witness Mohamed Shorbagi. He claimed familiarity with various Muslim groups in
America including the Holy Land Foundation. However, he has never been to the
West Bank where all of these zakat committees are located. (ROA.15-10303.21528).
Additionally, as stated under Issue One of this brief, the Fifth Circuit, on direct
appeal, found that his testimony was inadmissible hearsay. This was because he
possessed no personal knowledge, rather based his opinions on what he claimed to
have heard from friends and read in newspapers.
Shorbagis testimony was inadmissible because he had no personal, nonhearsay factual basis for it. More importantly, and not addressed by the Fifth
Circuits opinion, is the fact that he gave no testimony at all laying out a factual basis
for concluding that Hamas controlled any zakat committees. He had no information
or knowledge as to how the committees operated or how decisions were made.
The governments third attempt to establish control of the committees by
Hamas came with the anonymous Israeli witness Avi. His testimony was essentially
that there were known Hamas members who were on the zakat committees,
sometimes in leadership positions, and that this proved that Hamas controlled the
committees. In fact, Avi had never been to a zakat committee and had no information
or knowledge as to how the committees operated. Moreover, Avis testimony does
not provide proof of control of the committees by Hamas.
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For instance, while Avi identified members of Hamas who he said were on the
zakat committees, he also admitted that not all members of the committees were
Hamas members. (ROA.15-10303.22884). Avi even admitted that on one of the
committees there was a report that said only five out of 16 committee members were
Hamas activists. (ROA.15-10303.23072-73).
Avis testimony further demonstrated that he had no real evidence on the
control question. He has never spoken to any person who received money from a
zakat committee, or ever spoken to any Palestinians about the committees. (ROA.1510303.22997-23002). Avi also admitted that the committees were always under the
control and jurisdiction of either Jordan, Israel or the Palestinian authority all of
whom are enemies of Hamas. (ROA.15-10303.23037-23044).
As stated under Issue One, the government relies on Avis affirmative response
to the following question concerning each of the listed committees:
Q. I am just asking you about whether each of these was controlled
by Hamas or part of the Hamas social wing? (ROA.15-10303.2319596).
A close examination of Avis testimony shows that he had no knowledge or
information as to how the committees operated and based his claim of control on his
conclusion that there were Hamas activists in positions on the committees. His
testimony did no more than the other witnesses to address the question of control
from a legal or practical standpoint.
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An examination of the evidence, with a proper application of the law, will show
that Hamas did not control these committees any more than the fact that a person is
a member of the Republican party, and is an officer of Walmart, means that the
Republican party controlled Walmart. The evidence simply shows that zakat
committees were composed of community leaders, some of whom were Hamas
sympathizers and some of whom were not. There is no evidence that the Hamas
sympathizers or members worked in the committees on behalf of Hamas, any more
than there is evidence that a Fatah activist on the committee worked on the committee
on behalf of Fatah. Just as Americans can wear different hats, and perform different
roles in different aspects of their lives, so too can Palestinians. A person can be a
doctor or lawyer by profession, a member of Hamas or a Republican by political
belief, and a board member of the Red Cross or a zakat committee. This person can
do his professional and charitable work separate from his political activity in
Palestine as well as in America. In other words, the fact that a person may be a
Hamas activist, and sits on a zakat committee, in no ways proves that the committee
was controlled by Hamas.
The question of whether the government proved that Hamas controlled these
committees involves two sub-questions. First, what is actually meant by the term
control and second, what is the legal effect of government witnesses claiming, in
a conclusory fashion, that Hamas controls a zakat committee without providing any
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factual basis to support their conclusions.


Meaning of Control or Direct
The jury instructions used the terms direction or control, although the
governments testimony focused on control. However, under the meaning of either
term the government evidence falls short.
The following are the pertinent definitions of these terms:
CONTROL
Blacks Law Dictionary (9th ed. 2009).
control, n. (16c) The direct or indirect power to govern the
management and policies of a person or entity, whether through
ownership of voting securities, by contract, or otherwise; the power or
authority to manage, direct, or oversee <the principal exercised control
over the agent>.
Control, Merriam-Webster Dictionary
control
: to direct the behavior of (a person or animal): to cause (a person or
animal) to do what you want
: to have power over (something)
: to direct the actions or function of (something); to cause (something)
to act or function in a certain way
control
: the power to make decisions about how something is managed or done
: the ability to direct the actions of someone or something
: an action, method, or law that limits the amount or growth of
something
DIRECT
Blacks Law Dictionary (9th Ed. 2009)
direct, vb (14c) 1. To aim (something or someone). 2. To cause
(something or someone) to move on a particular course. 3. to guide
(something or someone); to govern. 4. To instruct (someone) with
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authority. 5. To address (something or someone).


Direct, Merriam-Webster Dictionary
direct
2 a: to regulate the activities or course of
b: to carry out the organizing, energizing, and supervising of <direct a
project>
c: to dominate and determine the course of
d: to train and lead performances of <direct a movie>
Cases in a variety of legal disciplines confirm that these common sense
definitions of direct and control apply to legal cases.
For instance, in Linn v. United States, 281 Fed.Appx. 339 (5th Cir. 2008) (not
designated for publication), the court found that the government did not retain
substantial control over the performance of a contract at an Air Force Based where
the means and methods of implementing the contract was left to the discretion of the
contractor.
In Commodity Futures Trading Commission v. International Financial
Services, Inc., 323 F.Supp.2d 482 (S.D.N.Y. 2004), the court stated that to establish
that a defendant controlled a corporation for purpose of the Community Exchange
Act it must be shown that the defendant exercised general control over the operation
of the entity and possessed power or ability to control specific transactions or
activities. See also, Monieson v. Commodity Futures Trading Commission, 996 F.2d
852 (7th Cir. 1993) (finding company chairman to be controlling person when he
made management and hiring decisions). See also, United States v. Sung Bum Chang,
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237 Fed.Appx. 985 (5th Cir. 2007) (not designated for publication) (Chang controlled
the activities at Club Wa and directed his wife and club employees in the criminal
activities related to Club Wa); In re Associated Bicycle Services, Inc., 128 B.R. 436
(Bank. N.D. Ind. 1990) (identifying the twenty common law factors or elements that
have been identified as indicating whether sufficient control is present to establish an
employer-employee relationship. These include such things as hiring, supervising,
setting hours or work, furnishing tools or equipment for the work, right to discharge
or terminate).
Under the definition of control and direction in these cases, as well as that
found in Blacks Law Dictionary and the Merriam-Webster Dictionary, the evidence
in the case at bar did not come close to establishing that Hamas exercised direction
or control over the zakat committees. The government presented no evidence from
any witness that had any knowledge of how the committees were managed or how
decisions were made. Not a single witness provided any information that the Hamas
organization controlled or directed the activities of these committees.
Significance of Witnesses Conclusory Claims That Hamas
Controlled Zakat Committees
The Court must also consider whether the conclusory statement that Hamas
controlled the zakat committees is sufficient evidence to prove that element of the
offense. As explained in the cases below, a conclusory statement is not evidence, and
without an evidentiary basis to support the conclusion, there is a failure of proof. The
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pertinent cases are:


United States v. Jones, 614 F.2d 80 (5th Cir. 1980) - Petitioners conclusory
statement that Government engaged in conspiracy to violate his constitutional rights
was insufficient to state constitutional claim in habeas corpus. Petitioners claim in
habeas corpus that Government illegally searched his residence was wholly
conclusory and unsupported by factual allegations or proof.
Ben Shou Zhu v. U. S. Dept. of Justice, 246 Fed.Appx. 66 (2nd Cir. 2007) (not
designated for publication) - Immigration judges adverse credibility determination
on asylum applicants claim was conclusory and not supported by substantial
evidence.
United States v. Stine, 458 F.Supp. 366 (E.D. Pa. 1978) - Search warrant
affidavit containing the conclusory statement that purchase of a rifle by the wife of
the defendant, a felon, was straw and was insufficient to support a finding of
probable cause for search.
United States v. Smith, 13 F.3d 380 (10th Cir. 1993) - There was insufficient
evidence to prove that park was playground to support finding that defendant
distributed crack cocaine within 1,000 feet of playground, where there was absolutely
no evidence in record that playground apparatus existed in the park. Undercover
officers conclusory statement that park had playgrounds was not enough.
United States v. Rodriguez-Hernandez, 197 Fed.Appx. 657 (9th Cir. 2006)
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(superseding opinion, 2007 WL 135686) (not designated for publication) Conclusory declaration of defendant charged with illegal re-entry that he did not
understand his right to be appointed an attorney before giving a confession, was
insufficient to create a contested issue so as to require an evidentiary hearing on his
motion to suppress.
United States v. Reece, 547 F.2d 432 (8th Cir. 1977) - Where prosecution
rested its proof of the mailing of various checks on conclusory statements by
witnesses that they expected to receive a check in the mail, there was a complete
failure of proof that checks had been mailed.
United States v. Gilmer, 793 F.Supp. 1545 (D. Colo. 1992) - Government failed
to establish that officer fully advised defendant of his Miranda rights despite
conclusory statements that defendant was Mirandized.
Cox v. Barnhart, 345 F.3d 606 (8th Cir. 2003) - Conclusory statements by
physician, if unsupported by medical records, do not bind the ALJ in his
determination as to whether claimant for social security disability insurance is
disabled.
Ashcroft v. Iqbal, 556 U.S. 662 (2009) - Supreme Court emphasized that, when
assessing the sufficiency of a civil complaint, a court must distinguish factual
contention and threadbare recitals of a cause of action supported by mere conclusory
statements.
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Metz v. Shalala, 49 F.3d 374 (8th Cir. 1995) - Physicians conclusory letter
diagnosing claimant as disabled without supporting evidence does not amount to
substantial evidence of disability.
Price v. City of Charlotte, 93 F.3d 124 (4th Cir. 1996) - Neither conclusory
statements that plaintiff suffered emotional distress nor mere fact that constitutional
violation occurred supports award of compensatory damages.
Harvey v. Mark, 352 F.Supp. 285 (D. Conn. 2005) - Plaintiffs conclusory
statements expressing his belief that the defendants treated men differently than
women were insufficient proof..
Lucas v. Chicago Transmit Authority, 367 F.3d 714, 726 (7th Cir. 2004) Conclusory statements, not grounded in specific facts, are not sufficient to avoid
summary judgment.
As these cases demonstrate, a conclusory statement is something different and
distinguishable from evidence. The courts analysis as to whether the government
proved that Hamas controlled the zakat committees cannot begin and end with the
conclusory claims that there was control. The court must look beyond these
conclusory statements to determine if there was any evidence supporting the
conclusion. A review of the record will show that there was no evidence supporting
the claim that Hamas controlled the zakat committees.
In response to Appellants argument, the government cited language from the
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Court of Appeals opinion concerning the formidable evidence of guilt. However,


in order to understand the opinion of the Court of Appeals, it is necessary to
understand what they were analyzing. Since defense counsel did not challenge the
sufficiency of the evidence and did not argue that there was insufficient evidence on
the particular question of control of the committees by Hamas, the Court of Appeals
did not analyze that argument. By failing to raise this issue and focus the Court of
Appeals on the question of control, defense counsel allowed the Court of Appeals to
believe the evidence was formidable based on the evidence of sympathy between
some committee members and Hamas, and some defendants and Hamas. However,
the case was not about sympathy; it was about control, and the Court of Appeals was
not asked to decide if control was proven.
The government further argues that HLF functioned as a fund-raising entity
for Hamas. (p. 49). While the evidence proved no such thing, even if it did, this is
a completely different question from whether Hamas controlled the zakat committees.
Additionally, the government contends that Hamas made efforts to obtain
control of charitable committees and other institutions by installing a critical mass of
Hamas members in the controlling positions of these institutions. p. 49. However,
the governments own statement shows that there was no control of the committees
by Hamas. They say Hamas made efforts to obtain control. Making efforts is not the
same as obtaining control. They say Hamas efforts included installing a critical mass
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of Hamas members in the controlling positions. However, the government does not
show that Hamas did this or how, even if this was true, it resulted in control of the
committees. Most importantly, the government fails to make the crucial connection
and demonstrate how having Hamas members or sympathizers on the zakat
committees resulted in Hamas control of the committees.
Likewise, the statements made by some persons that certain committees are
ours, referring to Hamas, does not prove control. What is meant by ours is
unclear, but it does not equate with control. Rather, it is likely nothing more than a
reflection of sympathy for Hamas within some committees. The use of the word
ours cannot substitute for actual evidence proving control.
Like the government, the district court relied on the Fifth Circuits opinion on
direct appeal to conclude that there was extensive evidence that the zakat
committees in the indictment were controlled by Hamas. However, as stated
previously, while there was evidence that some members of Hamas, or Hamas
sympathizers, were involved with the zakat committees, this is not the same as
evidence of control of the committees by Hamas.
The reliance of the district court on the Fifth Circuits previous opinion really
just illustrates the serious problem created by counsel not challenging the legal
sufficiency of the evidence on appeal. This left the Fifth Circuit with the impression

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that there was, in fact, sufficient evidence of this necessary fact.8 Since the truth is
that there was no evidence of control of the zakat committees by Hamas, it was
ineffective for defense counsel to not make this argument on appeal. This is an issue
that is certainly debatable and for that reason a certificate of appealability should
issue.
ISSUE THREE
(Abdulqader and Odeh only)
Abdulqader and Odeh received ineffective assistance on appeal based on the
failure of their appellate counsel to argue that the evidence failed to prove that they
knew of the unlawful objective of the conspiracy. (ROA.15-10304.6, 518; ROA.1510308.7, 518).
ARGUMENT
In addition to the ineffectiveness on appeal argued above, Abdulqader and
Odeh received ineffective assistance for this additional reason.
Counsel for these two Appellants failed to argue on appeal that the evidence
was insufficient to prove that they knew of the unlawful objective of the conspiracy.
In order for Abdulqader and Odeh to be guilty of conspiracy, they would need to
know the unlawful purpose of the agreement and to have joined in it willfully, that
8

In her affidavit, Bakers defense counsel Nancy Hollander stated: I agree that a
legitimate argument could have been made concerning the sufficiency of the evidence on appeal.
This argument would have been a stronger argument than some of the issues we raised on appeal.
This argument is set out in the 2255 Motion and Memorandum. Our failure to raise this
argument was error by counsel.
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is with the intent to further the unlawful purpose. There is no evidence that
Abdulqader and Odeh had any knowledge as to where the specific funds raised by
HLF went. Without knowledge that funds were going to a specific zakat committee
that was allegedly controlled by Hamas, Abdulqader and Odeh cannot be guilty of
conspiracy.
This argument is made even more compelling when the testimony of
government expert witness Matthew Leavitt is considered. Leavitt stated the
following:
Q. Does Hamas control every Zakat Committee in the West Bank and
Gaza?
A.
No.
Q.
Do they control a majority of them?
A.
They control many. (vol. 7, p. 102).
This testimony shows that even if Odeh and Abdulqader knew that HLF funds
were going to zakat committees this does not prove they knew the funds were going
to zakat committees allegedly controlled by Hamas.
In United States v. Brown, 727 F.3d 329, 338 (5th Cir. 2013), the court
explained the law of conspiracy, as follows:
To prove a federal conspiracy offense, the government must establish,
inter alia, the defendants knowledge of the unlawful objective and
voluntary agreement to join the conspiracy. United States v. Arledge,
553 F.3d 881, 888 (5th Cir. 2008). As the district court instructed the
jury:
Mere presence . . . at the scene of an event, even with
knowledge that a crime is being committed, or the mere
fact that certain persons may have associated with each
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other, and may have assembled together and discussed


common aims and interests, does not necessarily establish
proof of the existence of a conspiracy. Also, a person who
has no knowledge of a conspiracy, but who happens to act
in a way that advances some purpose of a conspiracy, does
not thereby become a conspirator.
In the case at bar, the alleged unlawful object of the conspiracy was to provide
funds and aid to Hamas. In order for Abdulqader and Odeh to be guilty, they would
need to have knowledge of this unlawful object.
The evidence shows Abdulqader never worked for or was an officer of the
HLF. He had no management role in HLF generally and no say in where the funds
went. Moreover, there is no evidence at all that he even knew that the funds and
charity were contributed to a particular zakat committee, much less that a committee
was allegedly controlled by Hamas.
The evidence shows Odeh was the manger of the HLF office in New Jersey.
He also had no management role in HLF generally and no say in where the funds
went. Like Abdulqader, there is no evidence that he knew that the funds and charity
were contributed to a particular zakat committee, much less, that a committee was
allegedly controlled by Hamas.
Under these circumstances, there is insufficient evidence for a rational trier of
fact to find Abdulqader or Odeh guilty of any count. Their convictions are therefore
in violation of due process under the U. S. Constitution. See Jackson v. Virginia, 443
U.S. 307 (1979).
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In rejecting this argument, the district court cited testimony from the trial.
However, the testimony cited does not come close to proving that either Abdulqader
or Odeh had sufficient knowledge of the object of the conspiracy to be guilty.
As to Abdulqader, the district court cited the following: Some of the HLF
fundraising events included songs and Abdulqader was part of a band that performed
at many of these events; he traveled around the country on HLFs behalf to speak and
raise funds; in a 1996 video from a fundraising event, Abdulqader sent greetings to
Hamas leaders; the Hamas flag was visible at some events where Abdulqaders band
performed songs praising Hamas.
A close review of the district courts opinion shows that none of these actions
proved that Abdulqader had knowledge that the funds raised were going to any
particular zakat committee, much less that the zakat committee was controlled by
Hamas. Based on this, it was ineffective for appellate counsel to not raise this
argument on appeal.
In rejecting Odehs argument, the district court cited evidence that Odeh once
spoke approvingly about a Hamas suicide attack, that Odeh wrote a letter to an HLF
office stating that HLF had provided funds to support the orphaned children of an
Hamas operative and that Odeh had books about Hamas that identified a Ramallah
Zakat Committee member as a Hamas leader. The district court further cited
testimony that Odeh accepted a donation, where the donor stated the money was for
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relief supplies and weapons to crush the hated energy. Other evidence cited was
material found in Odehs office that concerned Hamas. However, despite this
evidence, the fact remains that there was no proof that Odeh knew the funds raised
went to any particular zakat committee, or that Hamas controlled the zakat committee
where the funds went.
Based on this, it constitutes ineffective assistance of counsel to not raise this
argument on appeal. A reasonable jurist could and should find this issue debatable
and thus the certificate of appealability should be issued.
CONCLUSION AND PRAYER FOR RELIEF
The question before the court is whether the Appellants have made a
substantial showing of the denial of a constitutional right. The facts underlying the
ineffective assistance of counsel claims are certainly substantial, and the Sixth
Amendment to the U. S. Constitution was violated by the ineffective assistance in this
case. Yet, the standard for issuance of a certificate of appealability does not require
proof that the Appellants will ultimately prevail on this case. Rather, the court should
simply decide whether reasonable jurists could debate whether the petition could have
been resolved in a different manner or that the issues are adequate to deserve
encouragement to proceed further. Here, the record shows that defense counsel failed
to adequately address the question of whether Hamas actually controlled the zakat
committees, both at trial and on appeal. This question was the key one in this case
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and without proof of this control there is no proof that the Appellants committed any
offense. No fair minded jurist can conclude that this is not a serious and substantial
question. Likewise, no fair minded jurist can conclude that this question was not
even worthy of an evidentiary hearing.
The manner in which this serious constitutional question has been handled by
the district court calls into question whether these Appellants have received the fair
consideration of their claims called for by the American criminal justice system.
Basic notions of fair play, as well as an application of fundamental notions of due
process require the granting of this certificate of appealability.
Respectfully submitted,
/s/ Gary A. Udashen
GARY A. UDASHEN
State Bar No. 20369590
SORRELS, UDASHEN & ANTON
2311 Cedar Springs Road, Suite 250
Dallas, Texas 75201
(214) 468-8100
(214) 468-8104 fax
Attorney of Record For Appellants

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CERTIFICATE OF SERVICE
I certify that today, August 5, 2015, a copy of the Brief for Appellant was
electronically served on Joseph Palmer, U. S. Department of Justice, 950
Pennsylvania Avenue, N.W., Suite 6500, Washington, D.C. 20530, to
joseph.palmer@usdoj.gov.
/s/ Gary A. Udashen
GARY A. UDASHEN

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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.
This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 12,636 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2.
This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)
and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been
prepared in a proportionally spaced typeface using Wordperfect X5 in 14 point Times
New Roman.
/s/ Gary A. Udashen
GARY A. UDASHEN

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