Miriam Rozen
Texas Lawyer

November 25, 2008

After a 42-day trial and 8 1/2 days deliberating, a federal jury in Dallas convicted the five individual defendants in United States v. Holy Land Foundation, et al. on charges that they engaged in a conspiracy to help funnel at least $12.4 million to Hamas through a now-defunct Richardson, Texas-based Muslim charity.

At the trial, the five individual defendants — who were indicted in 2004 — included former HLF fundraiser Mufid Abdulqader; original HLF chairman Mohammad El-Mezain; former HLF executive director Shukri Abu Baker; former and most recent HLF chairman Ghassan Elashi; and former HLF New Jersey representative Abdulrahman Odeh.

In the court’s charge to the jury, filed Nov. 11, U.S. District Judge Jorge Solis asked the jurors to consider 36 counts, including allegations that the now-defunct foundation and the five individual defendants engaged in a conspiracy to fund Hamas, a Palestinian group in the West Bank and Gaza that the U.S. government has designated as a foreign-terrorist organization. In addition, Solis asked the jurors to consider allegations that four of the individual defendants — Abdulqader, Abu Baker, Elashi and Odeh — conspired to provide funds, goods and services to a terrorist organization and conspired to commit money laundering. The government also accused Abu Baker and Elashi of money laundering, providing material support to terrorists and filing false tax returns. The HLF defendants had denied the allegations and pleaded not guilty, saying the organization was a charity that sent money it raised to individuals and groups, in some cases orphans, in the West Bank and Gaza for humanitarian purposes.

The jury on Monday found the individual defendants and HLF guilty on all the counts. And the jury also decided that some of the HLF defendants must forfeit $12.4 million in property to the federal government in relation to the money-laundering counts.

The decision was a final triumph for Richard Roper, U.S. Attorney for the Northern District of Texas, who is expected to leave office as President-elect Barack Obama takes over the White House. Roper is an appointee of President George W. Bush.

“This is a great day in the United States,” Roper says. “We will not tolerate those who fund terrorism.”

But Greg Westfall, a partner in Fort Worth’s Westfall, Platt & Cutrer who represents Abdulrahman Odeh, says there is nothing honorable about the government’s prosecution of the HLF defendants.
“This was a political prosecution,” Westfall says. “The government put up a fight, but it wasn’t a good fight.”

“Years from now, in not too many years from now, we’ll look back at this in shame,” says Westfall, who alleges the case stands for bigotry and the violation of his client’s civil rights. Westfall says he plans to appeal the verdict to the 5th U.S. Circuit Court of Appeals on several grounds, including a ruling by Judge Solis that allowed an expert witness to testify anonymously.

Jim Jacks, who is the First Assistant U.S. Attorney in the Northern District and led the prosecution team, says defense allegations that the case was political are “hollow.” Rather, the case involved over a decade worth of investigation that spanned back into the administration of President Bill Clinton.

“I suppose you would expect that,” Jacks says of the allegations. “All we can do is present our case … and the result is what it is. The statute is there. We presented the evidence,” and the jury agreed, he says.

The defendants were tried last year, but on Oct. 22, 2007, then-Chief U.S. District Judge A. Joe Fish of the Northern District of Texas declared a mistrial in the case. Fish, who took senior status on Nov. 12, 2007, subsequently transferred the case to Solis.

Fish’s declaration of a mistrial followed a confusing set of events with the jury in the first trial. On Oct. 18, 2007, after nine weeks of trial and 19 days of deliberations, the first trial’s jury notified the judge that it had reached a verdict. Fish sealed the verdict sheets for four days, because he was out of town. When Fish returned to Dallas on Oct. 22, 2007, and read the verdict sheets in court, he noted that Abdulqader had been acquitted on all counts, El-Mezain on all but one count and Odeh on all but two counts. Fish then polled the jurors, three of whom said they disagreed with some of the panel’s decisions, so the judge sent them back to the jury room for further deliberations. Within hours, the jury returned to the courtroom without a unanimous decision except about El-Mezain, who they acquitted of 31 of the 32 counts against him; they were hung on the remaining count. Fish entered a judgment of acquittal for El-Mezain on 31 counts. As to all the other counts against the five men, the judge declared a mistrial, because the jury was hung.
Assistant U.S. Attorneys Elizabeth J. Shapiro, Barry Jonas and Nathan Garrett also served on the prosecution team.

The court-appointed lawyers representing the defendants in the case are: Nancy Hollander, John W. Boyd and Theresa Duncan of Albuquerque, N.M.’s Freedman Boyd Hollander Goldberg & Ives who represent Abu Baker; Joshua Dratel of the Law Offices of Joshua Dratel in New York City who represents El-Mezain; Marlo Cadeddu, a Dallas solo who represents Abdulqader; Westfall, who represents Odeh; and solo Linda Moreno of Tampa, Fla., and John D. Cline, a partner in the San Francisco office of Jones Day, who represent Elashi.