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Case: 15-10303

Document: 00513142705

Page: 1

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

Case: 15-10303

Document: 00513142705

Page: 2

Date Filed: 08/05/2015

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

-i-

Case: 15-10303

Document: 00513142705

Page: 3

Date Filed: 08/05/2015

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.

- ii -

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i STATEMENT REGARDING ORAL ARGUMENT. . . .iii - . . . . . . . . . . . . . . . . . . . . . . . . . . 9-28 ISSUE TWO . . . . . . . . . . . . . . . . . . . . . 28-49 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii TABLE OF CONTENTS. . . 4-9 ISSUE ONE . . . . . . . . . . . . . . . . . . . . . 28 The district court inadequately and improperly addressed the ineffective assistance of counsel on appeal claim. . . . . . . . . . . . . . . . ARGUMENT . . . . . . . .Case: 15-10303 Document: 00513142705 Page: 4 Date Filed: 08/05/2015 TABLE OF CONTENTS Page CERTIFICATE OF INTERESTED PERSONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-7 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii-iv TABLE OF AUTHORITIES . . . . . . . . . . . . . . 9 The district court could not legitimately and fairly decide Appellants’ ineffective assistance of counsel at trial claims without holding an evidentiary hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v-ix STATEMENT OF JURISDICTION. . . . . . . . . . . . . 2-4 SUMMARY OF ARGUMENT . .

. . . . . . . . . . . . . . . . . . . . . . .. . 49-53 CONCLUSION AND PRAYER FOR RELIEF. . . . . . . . . . . . . . . . .Case: 15-10303 Document: 00513142705 Page: 5 Date Filed: 08/05/2015 ISSUE THREE . . . . . . . . . . . . . . 55 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . 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. . . . . . . . . . . . . . .iv - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 . ARGUMENT . . . . . . . . . . . . . 53-54 CERTIFICATE OF SERVICE. . . . . . . . . . . .

. . . . . . . .. . . 26 Dickson v. . . . . . . . . Barnhart. . . . . . .. . . . . . . . . . . Iqbal. . 14 L. . . .. International Financial Services. . . . . . . .C. . . . . . . 692 F. . . .D. . . . . . . . . . . 317 F. U. . . . . . . . 453 F. . . . . 1982). . . . 30 Commodity Futures Trading Commission v. . . . .3d 1279 (10th Cir. . . . . 30 Forman v. . . . . . . . . . . . . . .2d 1155 (7th Cir. . . . . . . . Quarterman. 2008). . . . 42 Coppage v.D. . . . . . . 8 Bauman v. . . . 463 U. . . 534 F. . . Pillsbury. .Ed. . . . . . . . . .Y. . . . . . . 66 (2nd Cir. . . 753 F. . 579 (1993) . S. . 2002) . . . . . . Wainwright. . 8 Gideon v. . . . 9 -v- . . .S. . 1187. . . . 44 Cargle v. . .Supp. . 2007) .3d 766 (5th Cir. . . . . . Washington. . . . . . 545. . . . . . . .2d 482 (S. 13 Ashcroft v. . . . Estelle. . . 345 F. . . . Mullin. . . 469 U.S.Appx. . 2002) . . . . . . . . . . . 7 Cox v. . . . . . . . . . . . . . . . . . . . . 380 U. . . . . .S. . . 85 S. . . . . . . . . . 45 Daubert v. . . . . S. . 7. . 14 (D. . . . . . . . . . 509 U. 8 Evitts v. . .2d 62 (1965). 11 Ben Shou Zhu v.Case: 15-10303 Document: 00513142705 Page: 6 Date Filed: 08/05/2015 TABLE OF AUTHORITIES CASES Page Armstrong v. . . 246 Fed. . . . . United States. . . . Johnson. . . . . . . .. . . 29 Fagan v. Merrell Dow Pharmaceuticals. 387 (1985). . . . . 291 F. . . . . . . . . . of Justice. . . 27 Foster v. . . . . . . . . . 12 Aron v. McKune. . . 880 (1983). . . . Dept.S.3d 1196 (10th Cir. 323 F. . .Ct.. . . . . 45 Barefoot v. 2004). 2003) . . . . .Supp. . . . . 942 F. . . . . . . 2003). . . 556 U. . . . . . . 1990). . . . . 1991).3d 708 (11th Cir. . . . . . Inc. . . . .N. . .3d 643 (5th Cir. . . . . . . .3d 606 (8th Cir. . . . 335 (1963). . . . . . . . . .2d 565 (9th Cir.. . United States. . .S. . . . 293 F. 662 (2009) . . Inc. . . . . . . 2006) . Lucey. Manzo. 372 U. . .

vi - . .. . 234 U. . . . . . 46 In re Associated Bicycle Services. . . 31. 1985). . 42 Mullane v. 9 Metz v. . . . . . . . . . . 1990) .Supp. . 419 (1995). . . . . . . . . . . . . . . . . . Cockrell. 367 F. . . . . . . . . . 604 F. 364 (1993) . . .S. . . . . . 385. . . 443 U. . . . . 12 Nealy v. 759 (1970). . . .S. . . 30 Lucas v. . . Fretwell.R. .Appx. 537 U.2d 852 (7th Cir. . . . Whitley. . 1993). . . . . . . . . . . Carmichael. . . . . 12 Graves v. . 58 L. . .3d 714 (7th Cir. . . . . . . . . . .Case: 15-10303 Document: 00513142705 Page: 7 Date Filed: 08/05/2015 Grannis v. . . 339 (5th Cir. . . . . . .S. . 541 U. . . . . .3d 1016 (7th Cir. . . . . 351 F. Ordean. . . . . 7.S. . 43 In re Winship. . . . .S. . . 2010). . . . Conn. . 1057 (2004). . . .S. . . . 111 (1969). . . . Richardson. . . 281 Fed. . . . . . .. . . . . . . . . . 137 (1999). . . . . . . . . Commodity Futures Trading Commission. . . 514 U. . . 322 (2003). . . . . . United States. . 46 McMann v. . . . . v. . . . . . . . . . . . .. . . . . . 397 U. . . . Shalala. 48 Miller-El v. United States. 436 (Bank. . . . . . . . . . . . 30 . . Central Hanover Bank & Trust Co. . . . 506 U. . . . . . . . . . . . . . . . .. . . . 30 Linn v. . . . 352 F. . . . 285 (D. . . . . . . . .D. . . . . 31 Harvey v. . 394 U. N. . .S. . 34 S. 42 Lockhart v. . . 996 F. . . . 764 F. .Ed. . . . . . 8 Monieson v. . . . . 2005) . 32.2d 1173 (5th Cir. . . . . . . 306 (1950). . 51 Johnson v. . . . 2008) . .. City of Chicago. . Inc. . . . 11 Kuhmo Tire Co. . Cabana. . . . . . .Ct. .. . . . . . . Cockrell. . . . . . . . . . Chicago Transmit Authority. . . . . . . . . 26 Kyles v. . . . . . .S. 526 U. . . . 10. .3d 374 (8th Cir. . 1363 (1914) .3d 143 (5th Cir. . . . . . . . . . . . . . . .S. . . . . . 2003). . . . . . . 31 Jackson v. . . . . . . . . denied. . cert. . . . .. . . . . . . . . . . 1995) . . . . . . . . . . 339 U.. . . . 397 U. . . . . . . . 307 (1979). . . . . . . . 8 Gregory v. . 358 (1970). . . . . . . 49 F. . Virginia. . . . . 128 B. . . Mark.S. . . . .S. . . . . 2004) . . . Ind. . . . . 779.

. Nev. . . . 763 (D. 1992). . . .2d 39 (3rd Cir. . 93 F. . . . . Brush Engineered Materials.3d 166 (5th Cir.3d 383 (5th Cir. . .Case: 15-10303 Document: 00513142705 Page: 8 Date Filed: 08/05/2015 Nix v. 167 L. . . . .S. . . . . United States. . . . 29 Stallings v. . . . Epps. Pensacola Const. . . . . . 31 Showers v. . 1995). . . .3d 624 (7th Cir. 555 F. . . . . 29 Tyger Const. . 427 F. 127 S. . . . . . . . . . 9. . . . . . . . . . 60 F. v. . .S. 12 . . . 498 F. . 1994) . . 89 L. . . . cert. . . .88 Acres of Land. . . . . . . 2010). 259 (2000). 46 Schriro v.2d 115 (5th Cir. 988. 434 U. . . Batamula. Beard. . . . . Ed. 473 (2000) . . 528 U. . . 529 U. . . . . 27 Price v. . . . . . . . . . . . . . 594 F. . . Co. . . . . . . . 2009). .2d 115 (1977). . . . 27 United States v. 2d 836 (2007). . . . 106 S. . . Ct. . . . 536 F. . . . 155. . . . . . Brown. McDaniel. . . . . . . . Washington.S. .. . .3d 329 (5th Cir. . . . . . . 1979) . . 29. . . Co. . . . . . . .. . . Whiteside. . . . . . . . . .S. . Schiro. . .Ct. . United States. . . . . . . . . . . 465. . .3d 124 (4th Cir. .3d 623 (9th Cir. . 30 Stevens v. . Scott. 2011). 721 F. . . . . . . . .. . . . . . .3d 489 (5th Cir. . . . . . 11 Passmore v. 550 U. Wilson.vii - . . 788 F. 13 Shaw v. . . . 2005). 618 F. . . 668 (1984).S. . . denied. . 8 United States v. . . . . . . . . . . .3d 625 (3rd Cir. . . . . . . 29 F. . . . . . . . . . . 50 United States v.S. City of Charlotte. . . . .Ed. 157. . . . . . . . .3d 1167 (5th Cir. . Robbins. . . . . 466 U. . 8 Smith v. 1996) . . . . . . Inc. 475 U. . . 30 Summerlin v. . .3d 137 (4th Cir. Estelle. . . . . 319. . 727 F. . . Day. . 1980) . . . . . . . . . . 1933. . . . 635 F. .). . . . . . . . 27 United States v. . . . . . . . 969 F. . 9 Teague v. . . 2013). 2015) . . 30 Paz v. . . . . 8 Strickland v. . . . . . 30 Owens v. .. 98 S. . . . . .Ct. . . . . . 10. . . 551 F. . . . . . .Ed. . . . . 2008). . . 848. . . . . .Supp. . . . .3d 908 (7th Cir. . . . . . . . .2d 1053 (5th Cir. . . .. . 54 L. . . 2013). . . Landrigan. . . .2d 123 (1986). . . . 30 Slack v. .

Bruce. 1996) . 2. . 366 (E. . . . . 32 United States v. . . . . . . 2013). . . . 45 United States v. . . . . Grossman. . . 9 United States v. .2d 80 (5th Cir. . . . . . . . 87 (5th Cir.. . . . . . . . . . . . . .3d 369 (5th Cir. . . 12 . . . . .3d 732 (5th Cir. . . . . . . 84 F. 614 F. . . Jones.2d 432 (8th Cir. . . . . . . 985 (5th Cir. . . .viii - . . 44 United States v. .3d 380 (10th Cir. . . . . . . . . El-Mezain. . 32 Upchurch v. . 2011). . . 1994) . . . 719 F. . . . 2007) . . . 1977) . . 44 United States v. . . . 44 United States v. .Case: 15-10303 Document: 00513142705 Page: 9 Date Filed: 08/05/2015 United States v. 1545 (D. . 2005) .D. 11 United States v. . . 24.Supp. 547 F. . .Supp.3d 255 (5th Cir. . . .Appx. . . . . . . . . . . .. 24 F. Schuchmann. . . . . . 657 (9th Cir. . . 1980) . . . . 31 United States v. . . 36 United States v. . . 333 F. 11 United States v. . 42 United States v. 2010) . . . 237 Fed. . . . .. . . . . . . . . . . . . . 2003). . McCoy. . . 197 Fed. .3d 124 (3rd Cir. 45 United States v. 664 F. . . . . . . . . . . . . . . 117 F. 2006). . Reece. . .3d 1158 (10th Cir. . . 410 F. . . . . .Appx. . Stine. . 1997) . . . . Rodriguez-Hernandez. . . . . . . . . . Sung Bum Chang. Appx. . . . 9. . . . . 1993) . 793 F. Wright. Gilmer. . . . 397 Fed. . . . . . . . .3d 467 (5th Cir. Reed. . . et al. . 1992) . . . . . . . . . . . . .. . . Colo. . . . . 458 F. . 1978) . . . . . Pa. . .3d 752 (5th Cir. . Smith. . . . . . . . 13 F. . 44 United States v. . . . . . . McGrew. .

. . . . . . . . . . . . . . . .ix - . . . . . . . . . . 7 28 U. . . . . . . . . . . . . . . 7 F. . . . . . .. . . . . . . . . . . . . . . 2009). . . §2255. . . . . . . . . . .C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . P. . . . . . . . . . . . . .C. . . 1 28 U. App. . . . . . . . . . . . . . . . . . §2253(a) . R. . . . . . . . . . . . . . . . . . . . . . . . 26. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Evid. P. . . . .S. . . . . . . . . . . . §1331 . .C. . . . . . . . . . . . . 1. . . . Crim. . 1. 1 28 U. . . . . .. . . . . .S. . . . . . . . . . . .S. . . . . . . . . . 41. . . . . . . . . . . 19 F. . . . . . . . . . . 27. . . . . . . . R. . . . . . . . 11 F. . . R. . . . 43 . . 22. . . . . . . . . . . . . . . . . . 15. . . . . 28 MISCELLANEOUS Black’s Law Dictionary (9th ed. . . . . . .C. . . . . . . . . . . . . . 702. . . . . . . . . . . . . . . . . . . . . . . . . . 41. . . §1291 . . . . . . . . . . . . . .Case: 15-10303 Document: 00513142705 Page: 10 Date Filed: 08/05/2015 CODES AND RULES 28 U. . . . 43 Merriam-Webster Dictionary. . . . .S. . . . . . . . . .

Page 1 . Appellants’ Brief . These particular documents are also found at the following: ROA.C.C. ROA.15-10307.28870-28911).881-924. ROA.C. ROA. §1291 and also 28 U. 1 Record cites throughout this brief are to the record in 15-10303.884.881-924.28914). §2253(a) if it grants a Certificate of Appealability (“COA”). The district court could not legitimately and fairly decide Appellants’ ineffective assistance of counsel at trial claims without holding an evidentiary hearing.S. 3.2 The district court had jurisdiction pursuant to 28 U.Case: 15-10303 Document: 00513142705 Page: 11 Date Filed: 08/05/2015 STATEMENT OF JURISDICTION Appellants’ appeal the final order denying their Motions Under 28 U.1510308. ROA:15-10306. This court has jurisdiction pursuant to 28 U. (ROA.S.1 Notice of Appeal for all Appellants was filed on April 10. 2 Also. §2255 to Vacate. 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. 2015.15-10303. 2.1030. 2015.15-10307. ROA.S.925.15-10306. The district court inadequately and improperly addressed the ineffective assistance of counsel on appeal claim.15-10308.840-883.1510303. STATEMENT OF ISSUES 1.15-10304. (ROA. §§1331 and 2255.981-1029). Set Aside or Correct a Sentence By a Person in Federal Custody entered by the district court on March 30.15-10304.C. ROA. ROA.925.S.

S. et al. the Court of Appeals issued its decision affirming all convictions and sentences..3 On March 30. or Correct Sentence By A Person In Federal Custody. A Petition for Writ of Certiorari was filed and denied on October 29. Set Aside. 2015. all Appellants filed their Motion Under 28 U. The jury acquitted El-Mezain on all charges except Count 1 (conspiracy to provide material support to Hamas).C. seq. ROA. but one juror changed her mind when polled and thus the jury hung 11-1 for acquittal on all counts as to him. United States v. 664 F. It initially acquitted Abdulqader on all counts.6 et. 2011).. ROA. 2012.6 et.3d 467 (5th Cir. (3R. seq. After six weeks of evidence and nine days of deliberations. seq. The first trial of this case ended with a partial verdict October 22..27996-28022). (3R. El-Mezain.7 et.15-10303. On December 3rd and 27th.7079) All Appellants timely appealed.Page 2 .15-10306.5440). 2008.15-10307. Appellants’ Brief . the jury found Appellants guilty on all counts in which they were charged. ROA.1510308. (ROA. On October 25. The second trial began on September 22. Proceedings Below Appellants were charged with various offenses related to a claim they provided material support to Hamas. The jury hung on all counts as to all other appellants. seq.Case: 15-10303 Document: 00513142705 Page: 12 Date Filed: 08/05/2015 STATEMENT OF THE CASE I. §2255 to Vacate.6 et.15-10304. the district court denied the 3 ROA. 2007. 2013. 2011.

Statement of Facts HLF was a charitable organization. HLF distributed humanitarian aid to Palestinians through local charitable organizations known as zakat committees. HLF helped Hamas win the "hearts and minds" of the Palestinian people. Baker. Appellants’ Brief . Although HLF distributed humanitarian aid in the United States and other countries.15-10303. 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. II. its primary mission was providing assistance to Palestinians living under Israeli occupation in the West Bank and Gaza. These transactions formed the basis of the charges. and he sometimes served as a volunteer for the organization. All Appellants gave timely notice of appeal. Elashi and El-Mezain held various positions in HLF.28870-28911). 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. The United States first banned financial support for Hamas on January 25. (ROA.Case: 15-10303 Document: 00513142705 Page: 13 Date Filed: 08/05/2015 motions and denied a certificate of appealability. Abdulqader belonged to a band that performed at HLF events (among other places).Page 3 . Odeh ran HLF’s New Jersey office from early 1994 until the organization closed.

in reality. Nevertheless. This failure resulted in an unjust conviction at trial. which was erroneously affirmed on appeal. 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. Beginning with the designations of Hamas and others in January 1995. Appellants’ Brief . the claim was that Hamas “controlled” the zakat committees. But the government never designated any of the zakat committees. or to act for or on behalf of” Hamas.Case: 15-10303 Document: 00513142705 Page: 14 Date Filed: 08/05/2015 1995. they were. This contention was made despite the fact that the government agrees that the Appellants did not give any money to Hamas. if the evidence failed to prove that Hamas controlled the zakat committees. Rather. Thus.Page 4 . it was not illegal to provide support to Hamas. the Treasury Department maintained a public list of all designated persons and entities. Hamas and several Hamas officials appeared on the Treasury Department list. In both the trial and appellate phase of the proceedings. Prior to this date. defense counsel rendered ineffective assistance in inadequately addressing this fundamental issue. the Appellants were convicted based on providing funds to the zakat committees. or anyone connected with the zakat committees. The list included persons and entities designated because they were determined to be “owned or controlled by. then the Appellants were not guilty. giving money to Hamas.

Rather. The witnesses who knew best whether Hamas controlled the zakat committees were the members of the zakat committees. These egregiously improper rulings essentially slam the courthouse door on the Appellants and deny them a fair consideration of their claims. the district court summarily denied the claim and refused to hold an evidentiary hearing. none of these people testified. defense counsel failed to present available evidence that would have affirmatively proven that Hamas did not control the zakat committees. Yet. All they ask Appellants’ Brief .Case: 15-10303 Document: 00513142705 Page: 15 Date Filed: 08/05/2015 At trial. that state that they were members of the zakat committees. The failure to call these witnesses constitutes a serious omission by defense counsel. they were not members of Hamas and Hamas did not control the zakat committees. The request from the Appellants is simple and straightforward. there were no witnesses from either side who had personal knowledge of whether Hamas controlled the zakat committees. willing to provide this testimony. Despite the record presented to the district court on this 2255 motion. which are part of the record of these 2255 motions. the witnesses from both sides were “experts” with no personal involvement with the zakat committees. These affidavits further state that they were never interviewed by defense counsel and never asked to testify and that they were.Page 5 . and still are. This evidence was the testimony of numerous residents of the West Bank who actually served as members of the zakat committees. At trial. These persons have provided affidavits.

Despite this. or resulted in a reversal on appeal.Page 6 . the key objection was missed. While there was evidence that there were some members of the zakat committees who were sympathetic to Hamas Appellants’ Brief . and. at trial. While defense counsel did make some objections to this testimony. this opinion very likely have been excluded. the claim that Hamas controlled the zakat committees. Although there was ineffective assistance based on counsel’s failure to adequately challenge. 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. these “experts” had no basis of knowledge and no factual information that supported their claim that Hamas controlled the zakat committees. In addition to the failure to interview and present evidence from members of the zakat committees. Theirs was an opinion without any factual support. defense counsel failed to adequately object to testimony from the government’s supposed “experts” who claimed that Hamas controlled the zakat committees. Anything less than this is a serious departure from the usual fairness of the American criminal justice system. nevertheless the evidence was legally insufficient to prove this essential fact. The ineffective assistance from the trial then carried over to the appeal. had defense counsel made a proper objection.Case: 15-10303 Document: 00513142705 Page: 16 Date Filed: 08/05/2015 for is an opportunity to prove their claims in an evidentiary hearing. In fact.

McKune. 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. for that matter agree that) the petition could have been resolved Appellants’ Brief .S. 534 F.3d 1279.S. Under 28 U. 22. App. Cockrell. A challenge to the sufficiency of the evidence would have required the Court of Appeals to closely examine this issue. 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. 537 U. 880. a certificate should issue when there is a “showing that reasonable jurists could debate whether (or. 893-894 (1983). Coppage v. The result of this would have been a conclusion that the evidence was legally insufficient to support the verdict.Case: 15-10303 Document: 00513142705 Page: 17 Date Filed: 08/05/2015 or were even members of Hamas. F. 322.Page 7 . 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. 330 (2003). 2008)." Miller-El v. § 2253 and Barefoot v. The certificate of appealability should be granted if the Appellants have made a substantial showing of the denial of a constitutional right. R.S. 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.C. Estelle. 1281 (10th Cir. 463 U. P.

537 U. denied. United States v. 1057 (2004) ("Any doubt regarding whether to grant a COA is resolved in favor of the petitioner"). 484 (2000) (quoting Barefoot. one distinct from the underlying merits. Batamula. that the petitioner will not prevail.S. cert. Quarterman." Miller-El. 647 (5th Cir. for "a COA determination is a separate proceeding. See Graves v. See also. 2002) (granting certificate of appealability on ineffective assistance ground). Foster v.3d 489 (5th Cir." Slack v. 453 F.3d 166 (5th Cir. 473.S.S. 293 F. not the resolution of that debate.Case: 15-10303 Document: 00513142705 Page: 18 Date Filed: 08/05/2015 in a different manner or that the issues were 'adequate to deserve encouragement to proceed further. The only question before a court is whether it is debatable that a constitutional violation has occurred. 2006) (granting COA after quoting from Miller-El. the court stated that a habeas petitioner’s claim can be “debatable” even though every jurist of reason might agree. 537 U.3d 766 (5th Cir. after the certificate of appealability has been granted and the case has received full consideration. McDaniel. 788 F.S. 529 U. 2015) (granting certificate of appealability Appellants’ Brief . at 342): 'The question is the debatability of the underlying constitutional claim.3d 643. at 340-348. In Stevens v. 2010). 351 F. 541 U. 618 F. 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. Johnson. Epps. 4).Page 8 . supra at 893 and n. Cockrell.3d 143. 150 (5th Cir. 2003).") See. Dickson v.

United States v. 466 U. 95 (5th Cir.3d 369 (5th Cir. the record must demonstrate that. 372 U. 771 (1970). Schiro.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. “there Appellants’ Brief . 2005). 668 (1984). McGrew.S. Washington. 397 U. 759. Reed.S. Richardson.S. 2010) (not designated for publication) (granting certificate of appealability and remanding for evidentiary hearing). the result of the proceeding would have been different.3d 623 (9th Cir. ISSUE ONE The district court could not legitimately and fairly decide Appellants’ ineffective assistance of counsel at trial claims without holding an evidentiary hearing. 335 (1963). To satisfy the prejudice requirement.” Strickland v. Effective assistance is denied if. Wainwright.Case: 15-10303 Document: 00513142705 Page: 19 Date Filed: 08/05/2015 on ineffective assistance claim). 719 F.Page 9 . ARGUMENT Ineffective Assistance of Counsel . but for counsel’s unprofessional errors. 87. 397 Fed. Appx.” and “there is a reasonable probability that. 427 F. Summerlin v. “counsel’s representation fell below an objective standard of reasonableness. 2013) (granting certificate on ineffective assistance of counsel claim and remanding for an evidentiary hearing). United States v. McMann v.

the district court summarily denied the claim. Fretwell. As set out Appellants’ Brief . “A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” Lockhart v.” Id. the result of the proceeding would have been different.Case: 15-10303 Document: 00513142705 Page: 20 Date Filed: 08/05/2015 is a reasonable probability that. The arguments presented by Appellants establish a strong case of ineffective assistance of counsel. Counsel failed to present available evidence that would have conclusively established that Hamas did not control these zakat committees.S. a trial whose result is reliable.S. Appellants will focus on the following two instances of ineffective assistance of counsel at trial: a.S. but for counsel’s unprofessional errors. “a criminal defendant alleging prejudice must show ‘that counsel’s errors were so serious as to deprive the defendant of a fair trial. Yet. This was evidence from persons serving on the zakat committees and who lived in the communities where the zakat committees were located. 466 U. 364. 466 U.” Strickland. rather than set this case for an evidentiary hearing and fully examine the question. 369 (1993) (quoting Strickland. b. at 687). For purposes of this appeal. at 694. 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. That is. 506 U.Page 10 .

grant a prompt hearing thereon. In Bauman v. 54 L. cert. 848. 98 S. 604 F. Johnson v. In Owens v.3d 124 (3rd Cir.” See also.Ct. Appellants’ Brief .Case: 15-10303 Document: 00513142705 Page: 21 Date Filed: 08/05/2015 below. the district court erred in not holding a hearing on this ineffective assistance of counsel claim. Rule 8 of the Rules Governing Section 2255 Proceedings for the United States District Courts. Reed. 551 F.Ed. 2005) (finding evidentiary hearing was necessary). 155. determine the issues and make findings of fact and conclusions of law with respect thereto.C. United States v. denied. Necessity of a Hearing 28 U. United States. United States v. 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. 434 U. 2013) (vacating district court’s order and remanding for evidentiary hearing). . its allegations do not state a claim for relief or are so palpably incredible or so patently frivolous as to warrant summary dismissal. 1054 (5th Cir. .” See also. 410 F.2d 115 (1977). 719 F. United States. the court shall .S. 571 (9th Cir. 2010) (holding evidentiary hearing was required to resolve factual issues).Page 11 .).2d 565. 692 F.2d 1053. §2255 provides that. United States. “unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.3d 1016 (7th Cir. 1982).3d 369 (5th Cir.S. the court stated that an evidentiary hearing must be held on a §2255 motion “unless viewing the petition against the records. McCoy.

. See also Rule 4(b) of the Rules Governing Section 2255 Proceedings. Ordean. there are many independent factual issues which make an evidentiary hearing a necessity. 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.” Mullane v. In the case at bar. Accordingly we review this matter to determine if the trial court abused its discretion in not ordering a hearing. 545. Day.Case: 15-10303 Document: 00513142705 Page: 22 Date Filed: 08/05/2015 In United States v. Manzo. . This requirement of “appropriate procedures” has the goal of promoting fairness.S.Page 12 .S. 1989) (citation omitted).S. 394 (1914) (citation omitted). Virgin Islands v. Armstrong v.2d 39. Such opportunity for hearing should be “appropriate to the nature of the case. 969 F.C. In exercising that discretion the court must accept the truth of the movant’s factual allegations unless they are clearly frivolous on the basis of the existing record. which. 385. 1992). §2255 the question of whether to order a hearing is committed to the sound discretion of the district court. . "A federal court must consider whether such a hearing could enable an applicant to prove the petitions factual allegations. 314 (1950). 380 U.S.2d 59. and our standard of review. the court dealt with allegations of ineffective assistance similar to those raised here and stated the following: “We have described the District Court’s duty. if Appellants’ Brief . 865 F. 339 U.. 552 (1965). Further. Central Hanover Bank & Trust Co. 306. 62 (3rd Cir. Forte. 41 (3rd Cir.” It is axiomatic that “[t]he fundamental requisite of due process of law is the opportunity to be heard. It is an opportunity which must be granted at a meaningful time and in a meaningful manner. 234 U.” Grannis v. as follows: When a motion is made under 28 U.

3d 708. If the allegations are not affirmatively contradicted by the record and the claims are not patently frivolous. Under the standards cited above. nonconclusory facts that. Landrigan. a petitioner need only allege . the district court simply denied the petitions. Defense counsel’s most significant omission in this case is their failure to present available testimony from zakat committee insiders on the question of control. the district court erred in both refusing to hold a hearing and denying the ineffective assistance of counsel claims.Page 13 . finding no ineffective assistance of counsel. 474 (2007). 550 U. For the reasons set out below. a. the district court refused to hold a hearing. United States.S. 2002) (reversing district courts denial of 2255 motion). Failure to Present Evidence From Actual Members of the Zakat Committees.. Appellants’ Brief ." Schriro v.not prove — reasonably specific. It is in such a hearing that the petitioner must offer proof. Appellants have clearly demonstrated that they are entitled to a hearing on their petitions. 715 n.6 (11th Cir. 465. Rather. if true. Despite the fact that Appellants raised legitimate claims of ineffective assistance of counsel that could only be resolved with a hearing. 291 F. the district court is required to hold an evidentiary hearing. "The law is clear that." Aron v. would entitle the applicant to relief. would entitle him to relief. in order to be entitled to an evidentiary hearing.Case: 15-10303 Document: 00513142705 Page: 23 Date Filed: 08/05/2015 true.

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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
Appellants’ Brief - Page 16

Walid Khaled Ibrahim Jarrar. Hilwa Azmi Mohammad Hermas. Had this occurred. Hamzeh Theeb Mustafa Abu-Sabiha. Ammar Tawfiq Ahmad-Badawi Ayyoub.4 However. these witnesses were available to testify at the time of this trial. Appellants’ Brief . Hashem Sadek Abd-Elfattah Alnatsheh. (ROA. if the jury had heard this testimony. Abd-El Azez Magames Abd-Azez Saafen.Case: 15-10303 Document: 00513142705 Page: 27 Date Filed: 08/05/2015 case. Same from Abd-Alrahim Mohammad-Radi Taha Hanbali. It is of a nature not presented by any other witness. 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.Page 17 . Walid Abd-Allatil Solayman Abu-Libdeh. the jury would almost certainly have found these Appellants not guilty. Gayyath Ra’fat Hafez Khayre.28084-28123. Muhammed Eid Muhammed Mesk. Moreover. 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. Riyad Rashid Hamad Walwil. In its response. They demonstrate that persons with personal knowledge should have been called as witnesses to testify at the trial. Shaban Mohammad Salem Abu-Atten. They are available to testify now.15-10303. This testimony went directly to the heart of the case. Yasin Ahmad Amin AlSaadi. and were not. that is a person with direct knowledge of whether Hamas controlled the zakat committees. 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. able or willing to come to the United States to provide testimony. Bilal Khamis Yousef Abu-Sofira. the result of the trial would have been different. And. 28737-28785). the government contended that these witnesses will not.

However. Teresa Duncan. First. the law would Appellants’ Brief . the only way to determine this is to set this case for an evidentiary hearing and allow Appellants the opportunity to present these witnesses. none of which withstand serious scrutiny. that the witnesses state they would be willing to testify shows a willingness to appear in the necessary forum. 28733). However. Texas for trial. Linda Moreno. they do not state that they were willing to travel to Dallas. The question of whether the failure to call these witnesses constitutes ineffective assistance requires a complete evidentiary hearing where defense counsel. In rejecting this argument. nor do they state they had the required travel documents.Case: 15-10303 Document: 00513142705 Page: 28 Date Filed: 08/05/2015 actually appearing and providing testimony. and Marlo Cadeddu admitting that this was not a strategy decision and agreeing that the failure to call these witnesses constitutes ineffective assistance. The government additionally argues that the decision not to call these witnesses was a reasonable strategy choice by counsel. as stated previously.28541-28560. the district court adopts the government’s argument that the witnesses would not actually provide this testimony in court. the district court made several points. John Cline. Moreover. The district court’s order contends that although the witnesses state in their affidavits that they were “always willing” to provide their testimony. as well as the witnesses. However.15-10303. (ROA. affidavits have been submitted by defense counsel Nancy Hollander. are allowed to testify.Page 18 .

states. 15. Appellants should. in advance of a hearing date. “Jurors may therefore have discounted these witnesses’ testimony that Hamas did not control the Zakat Committees. be given an opportunity to present the witnesses’ testimony in order that a true credibility determination be made. the district court. some of whom were actually under criminal accusations in the United States. P. that they had the required travel documents.Page 19 . See F.” While that is certainly possible. it is highly unlikely. Secondly. at the very least. This motion was a broad motion that included several categories of potential witnesses. Additionally. the suggestion that they would need to demonstrate. To dismiss the importance of this evidence with a statement that the jury may have “discounted” their testimony is unfair and unreasonable. The jury heard from no witness with direct knowledge of whether Hamas controlled the committees. R. is to create an impossible burden.Case: 15-10303 Document: 00513142705 Page: 29 Date Filed: 08/05/2015 allow depositions of witnesses who were unable to make a personal appearance in court. Crim. Crim. the district court quotes from trial counsel’s Fed. Additionally. 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. 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. in a conclusory fashion. This motion did not refer to the same witnesses who have provided Appellants’ Brief . P. R.

(Documents 324.327. 244. 335. the Appellants’ trial motion for deposition of witnesses was denied by the district court without prejudice to refiling.Page 20 .Case: 15-10303 Document: 00513142705 Page: 30 Date Filed: 08/05/2015 affidavits and this expressed fear had nothing to do with the witnesses Appellants have identified. the affidavits from these witnesses show a significant willingness to provide testimony. In fact. 1244). In fact. 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. 335.15-10303. 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 witness’s fear of retaliation by the United States Government is enough for the court to deny Appellants the Appellants’ Brief . ROA. 1010-1016. 354. and therefore no witnesses from the West Bank would ever testify. This suggestion from the district court also raises a more fundamental problem. 354. 344. Instead. The district court’s order required defense counsel to specify which witnesses they intended to depose and give more details on how they intended to pursue these depositions. their motion was a pro forma request that was not seriously pursued. 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. Defense counsel failed to renew their request for the depositions by meeting these reasonable requests from the district court.

does not actually prove that Hamas controlled the zakat committees.” upon close examination. 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. is left within the sole control of the United States Government. Appellants’ Brief . from actually working at the zakat committees. as to whether Hamas controlled the committees. the “substantial evidence. Moreover. (See argument under Issue Two) This ineffective assistance contention is serious and substantial. then whether the court and jury hear all of the evidence. Lastly.Page 21 .Case: 15-10303 Document: 00513142705 Page: 31 Date Filed: 08/05/2015 opportunity to present highly relevant and material witnesses. 66 4F. the district court states.3d at 489. “Finally. exculpatory or inculpatory. 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. 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. Regardless of the ultimate disposition by this court. given the ‘substantial’ evidence of Hamas’s control of the Zakat Committees. El-Mezain. Such a system surely is offensive to basic notions of due process and fair play.” This statement fails to account for the fact that these witnesses would have been the only witnesses heard from who had personal knowledge.

even in the light most favorable to the government. Much of the ineffective assistance revolves around the failure of defense counsel to fully and adequately address this key point.Case: 15-10303 Document: 00513142705 Page: 32 Date Filed: 08/05/2015 The primary issue in this case was simply whether Hamas controlled the zakat committees. (ROA. 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. If the government failed to prove this basic fact. Appellants’ Brief .18545-18581).15-10303. 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. 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. Nevertheless. First. as argued previously.Page 22 . government expert witness Matthew Leavitt testified generally about Hamas and zakat committees. and certainly not guilty. However. Leavitt’s testimony failed to provide any information concerning how the committees operated and how decisions were made. on all counts of the indictment. then Appellants were actually innocent. Moreover. His testimony did not explain what he meant by saying Hamas “controlled” some zakat committees. he claimed that Hamas controlled some of the zakat committees.

He claimed familiarity with various Muslim groups in America including the Holy Land Foundation and stated that he grew up in Gaza. Shorbagi expressly testified that Hamas controlled the zakat committees in Nablus. Shorbagi testified that Hamas controlled several zakat committees in the West Bank and Gaza to which HLF donated money. The Fifth Circuit opinion stated: “1. and he responded: ‘It came from newspapers. Shorbagi testified that some of the zakat committees are controlled by Hamas.21528). he has never been to the West Bank where all of these committees were located. Mohamed Shorbagi Mohamed Shorbagi was a representative of HLF in Georgia who helped raise funds for the organization. ‘99. the fact that Shorbagi’s 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. (ROA.’ The defendants based their argument on appeal in large part on this exchange. Shorbagi may very well Appellants’ Brief . it came from leaflets.the internet later on in ‘98.Page 23 . Ramallah.15-10303. . contending that Shorbagi merely repeated what he had read in newspapers and what he had learned from friends..15-10303.. and he testified in the instant case as part of a plea agreement. Jenin. all of which were charged in the indictment as receiving funds from HLF. He pleaded guilty in s separate case to providing material support to Hamas through HLF. the Government asked Shorbagi the basis for his knowledge. However. At one point during his testimony. the website of Hamas. He also identified several people associated with the committees as Hamas leaders. and Hebron. it came from Hamas .21466-67). However. (ROA. and from also talking ‘among friends. and he stated that HLF was a part of Hamas. The defendants challenge this testimony as improper hearsay.Case: 15-10303 Document: 00513142705 Page: 33 Date Filed: 08/05/2015 The second attempt to address this issue came with government witness Mohamed Shorbagi.

e. In an effort to rehabilitate Shorbagi’s answer. The government’s third attempt to establish control of the committees by Hamas came with the anonymous Israeli witness Avi.’ ‘leaflets. But Shorbagi’s affirmative response did not transform his apparent reliance on the statements of others. More importantly. Shorbagi gave as examples ‘newspapers. when asked the crucial question as to the basis for this specific knowledge.” 664 F.Case: 15-10303 Document: 00513142705 Page: 34 Date Filed: 08/05/2015 have personally known that these committees were controlled by Hamas form his activity in raising money for HLF.3d 633. 2000) (web postings from the Internet were inadmissible hearsay). is that he gave no testimony at all laying out a factual basis for concluding that Hamas controlled any zakat committees.3d at 494-496. He had no personal information or knowledge as to how the committees operated or how decisions were made. It was claimed that Avi was an expert on Hamas financing through his work with the Israeli Security Agency. See. 397 F. and it was error for the district court to allow it.’ and ‘friends. and not addressed by the Fifth Circuit’s opinion. nonhearsay factual basis for it. 637 (7th Cir. and from meeting various Hamas leaders at the conferences. Shorbagi’s testimony was inadmissible because he had no personal. However.g. Jackson.3d at 295 (newspapers are hearsay). United States v. whether they were similarly situated to him or not.’ the ‘internet. 208 F. from attending conferences with the individual defendants. We therefore conclude that Shorbagi’s testimony that Hamas controlled the zakat committees was hearsay. the Government asked if the ‘friends’ to which Shorbagi referred were persons who were involved with him in supporting Hamas and organizations like HLF. into personal knowledge.’ These sources constitute classic hearsay rather than personal knowledge. His testimony was essentially that there were known Hamas members who were on the Appellants’ Brief . Roberts.Page 24 .

However. even accepting Avi’s application of his self created criteria does not show he had any factual basis to claim that Hamas controlled the zakat committees. Avi had never been to a zakat committee and had no information or knowledge as to how the committees operated. (ROA.15-10303.15-10303. he has never spoken to any Palestinians about zakat committees. On one of the committees there was a report that said only five out of 16 committee members were Hamas activists.Page 25 . Avi acknowledged that he has never been to a zakat committee and never spoken to anyone who received money from a zakat committee. (ROA.23072-73). and that this proved that Hamas controlled the committees.22997). Like all of the other government witnesses. and based on his list concluded that Hamas controlled these committees. (ROA. sometimes in leadership positions. Avi also admitted that the committees were always under the control and jurisdiction of either Jordan.23002). Avi created a self serving list of criteria. In fact.15-10303. such as families of suicide bombers or Appellants’ Brief . However.23037-23044). he also said that not all members of the committees were Hamas members.15-10303. Israel or the Palestinian Authority all of whom are enemies of Hamas.Case: 15-10303 Document: 00513142705 Page: 35 Date Filed: 08/05/2015 zakat committees. (ROA. Additionally.22884). For instance. Avi identified members of Hamas who he said were on the zakat committees.15- 10303. Avi also admitted that most of the aid from these zakat committees did not go to what he called special segment persons. (ROA.

23086).Page 26 .S. I am just asking you about whether each of these was controlled by Hamas or part of the Hamas social wing?” (ROA. His testimony did no more than the other witnesses to address the question of control from a legal or practical standpoint. Daubert v. Appellants’ Brief . Okay?” (ROA. However. v. Inc.15-10303. Carmichael. S. He said.Case: 15-10303 Document: 00513142705 Page: 36 Date Filed: 08/05/2015 Hamas activists killed by the Israelis. Merrell Dow Pharmaceuticals.15-10303. A close examination of Avi’s 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. 526 U. to the extent that there was even a slight suggestion by any other witnesses that Hamas controlled the committees. However. “They are focusing on this. a specific challenge to the admissibility of the witnesses’ testimony based on a lack of evidentiary basis for an opinion as to whether Hamas 5 It does not appear that the government relied on any other witnesses in an attempt to prove control of the zakat committees by Hamas. And it is not high percentage.2319596)..5 Defense counsel did challenge the testimony of the government’s expert witnesses under Rule 702 of the Rules of Evidence. 137 (1999). Ultimately. the government relies on Avi’s affirmative response to the following question concerning each of the listed committees: “Q. the other witnesses had even less knowledge than these three witnesses. 579 (1993) and Kuhmo Tire Co. 509 U.

753 F. The district court rejected this argument in its Memorandum Opinion and Order.3d 137 (4th Cir. 1990) (court may look behind expert testimony to determine whether it has adequate factual or scientific testimony). 319. Defense counsel’s failure to make this specific objection constitutes ineffective assistance.Case: 15-10303 Document: 00513142705 Page: 37 Date Filed: 08/05/2015 controls the zakat committees was not pursued. The district court cited the cross-examination of these witnesses by defense counsel and noted that their testimony was “vigorously challenged. 14 (D. In fact. Pensacola Const.C. Co. Tyger Const. the evidence is incompetent).Page 27 .” However. which is the basis on which it was challenged. Pillsbury.6 Under Rule 702(b).88 Acres of Land. 29 F. the district court missed the point of the argument.. 498 F.D.Supp. neither Leavitt or Avi had sufficient facts or data to provide testimony that Hamas controlled these zakat committees. His testimony was inadmissible hearsay. not an expert witness. Paz v. Co. v. 1980) (where the opinion of an expert is based on erroneous assumption of fact or law. Appellants’ Brief . United States v. Inc. Forman v. Nev.. the district court does not address Appellants’ argument that this testimony was inadmissible under Rule 6 Shorbagi was a lay witness. 763 (D.Supp. See. 1994) (excluding expert testimony that had no factual support). 2009) (where an expert’s opinion is based on insufficient evidence the analysis is unreliable). 555 F. Brush Engineered Materials.3d 383 (5th Cir. However. an expert can only testify if his testimony is based on sufficient facts or data.

Baker’s 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.28541-28560.7 The district court’s failure to address the actual argument made is disturbing. 28731-33). The fact that defense counsel engaged in vigorous cross-examination is really besides the point. this is an issue that clearly calls for an evidentiary hearing and the district court should have held such a hearing. this is an issue that is debatable among reasonable jurists and thus a certificate of appealability should issue. (ROA.Page 28 . ARGUMENT As in the previous issue. then this lack of objection was not the result of any trial strategy.Case: 15-10303 Document: 00513142705 Page: 38 Date Filed: 08/05/2015 702 of the Rules of Evidence based on the witnesses lack of knowledge as to whether Hamas actually controlled the zakat committees. These witnesses had an insufficient factual basis for their testimony and should not have been allowed to present the testimony at all. when the witnesses had no factual basis for the testimony. At the very least. The ineffective assistance was in not making this meritorious objections which would have excluded this testimony entirely. Moreover.1510303. the district court rejected the ineffective assistance of 7 Several defense counsel from trial have also submitted affidavits addressing this ineffective assistance of counsel claims. ISSUE TWO The district court inadequately and improperly addressed the ineffective assistance of counsel on appeal claim. Appellants’ Brief . Abdulqader’s defense counsel Marlo Cadeddu’s affidavit agreed with this point.

the ineffectiveness standard on appeal has been met here even without a hearing.Page 29 . Rather. Legal Standards for Ineffective Assistance of Counsel on Appeal The Fifth and Sixth Amendment to the U. In this regard. See Upchurch Appellants’ Brief . Appellants submitted that they received ineffective assistance of counsel on appeal in several ways. 469 U. 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. 259 (2000). Lucey. Under the Strickland test. While a hearing would be helpful. Effectiveness of appellate counsel is judged by the Strickland test.Case: 15-10303 Document: 00513142705 Page: 39 Date Filed: 08/05/2015 counsel on appeal ground without holding an evidentiary hearing. it must be shown that the Petitioner received a fair appeal the result of which is worthy of confidence.S.S. 1995). In their argument to the district court.3d 1167. Scott. 1174 (5th Cir. However. Teague v. 387 (1985). Constitution require that a defendant have effective assistance of counsel on his appeal. for purposes of this appeal. S. Evitts v. several circuits have held that appellate counsel is ineffective if counsel fails to raise a claim that qualifies as a “dead bang” winner. it is not necessary to show the outcome of the appeal would be different. Appellants rely on their argument that it was ineffective for counsel to not challenge the sufficiency of the evidence on appeal. Robbins. counsel has an obligation to raise determinative issues. See Smith v. 528 U. 60 F.

364 (1993).Ed. Appellants’ Brief .3d 625. Nix v. Where a Petitioner alleges ineffective assistance of appellate counsel. 2011). 594 F.2d 1173. 1985). 506 U. 89 L. In Showers v. 333 F. Whiteside. 635 F.S.2d 1155. 634 (3rd Cir. Id. 764 F. Strickland. appellate counsel was deficient. 466 U. Nealy v. If the ignored issues are clearly stronger than those raised. 514 U. Washington. Estelle.3d 624 (7th Cir. Fretwell. Lockhart v. 1157 (7th Cir. Fagan v.S. 1991). 2003). 475 U.S. Cabana. 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.” Id.2d 123 (1986). 536 F.Ct. Cargle v. See also Passmore v. if so. Stallings v. Kyles v. United States. 942 F. 317 F. 2003). 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.3d 1158 (10th Cir. Mullin.S. Bruce.Case: 15-10303 Document: 00513142705 Page: 40 Date Filed: 08/05/2015 v. 106 S.S. Whitley. 157. 2008).3d 1196 (10th Cir. 419 (1995). at 687.2d 115 (5th Cir. the appellate court first examines the record to see whether counsel omitted significant and obvious issues and. at 694. See also. 988. Strickland. Beard. The court then found prejudice established without a finding that Showers would definitely have won the appeal had the issue been raised. 1178 (5th Cir. 1979) (finding appellate counsel ineffective).Page 30 . 466 U. the court then compares the neglected issues to those actually raised.

358 (1970).S.” Id.” “nonfrivolous claim” that was “clearly stronger than the claim actually presented. 397 U. ineffective assistance of counsel is established by the failure of Appellants’ counsel to challenge the legal sufficiency of the evidence on appeal.3d 908 (7th Cir. 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. the court concluded that the state prisoner’s 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. Appellants’ Brief . 721 F. 2013). City of Chicago.S. 1997) (defendants convictions not supported by evidence). Wilson. 443 U.S. In re Winship. United States v. Jackson v. In that case. therefore. A conviction totally devoid of evidentiary support violates due process. 117 F. Virginia. all Appellants timely moved for judgment of acquittal. 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 the case at bar.3d 255 (5th Cir.Page 31 . 394 U. Grossman. 111 (1969). Gregory v. In the case at bar. United States v. at 916. 307 (1979). The standard of review.Case: 15-10303 Document: 00513142705 Page: 41 Date Filed: 08/05/2015 Also notable is the Seventh Circuit’s recent opinion in Shaw v.

Direction and Control In order to be guilty of any count in the indictment. To satisfy the requirement that the provision of material support or resources be made knowingly..Page 32 . Section 2339B. 1994) (court considers countervailing evidence in concluding that evidence is insufficient). and Ghassan Appellants’ Brief . ‘Whoever knowingly provides material support or resources to a foreign terrorist organization. in relevant part.3d 752 (5th Cir. 84 F.. as follows: . .Case: 15-10303 Document: 00513142705 Page: 42 Date Filed: 08/05/2015 Schuchmann.’ . you must find beyond a reasonable doubt that (1) the defendant under consideration agreed to provide material support or resources to Hamas. or that the organization has engaged or engages in terrorism.3d 732 (5th Cir.. Wright. Shukri Abu Baker. Shukri Abu Baker. United States v. . he did so ‘knowingly. That statute provides.. 24 F. and Ghassan Elashi are charged in these counts with violating Title 18. in relevant part. the government was required to prove that Hamas directed or controlled the zakat committees listed in the indictment.. See Jackson. Counts 2 through 10 of the Indictment read. ‘a person must have knowledge that the organization is a designated terrorist organization . all of the evidence is to be considered. the defendants HLF. supra.. . In reviewing the sufficiency of the evidence. . 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. The jury instructions made this clear by stating: COUNT 1 . United States Code.’ To do so. 1996) (government failed to prove allegations of indictment). or attempts or conspires to do so’ is guilty of a crime. COUNTS 2 THROUGH 10 The defendants HLF. .

. Shukri Abu Baker. United States Code.. managing.Case: 15-10303 Document: 00513142705 Page: 43 Date Filed: 08/05/2015 Elashi. goods and services to a Specially Designated Terrorist. .. a designated Foreign Terrorist Organization.. . the material support alleged in the count under consideration to Hamas through the entity listed in that count. Appellants’ Brief . or otherwise directing the operation of Hamas’s personnel or resources. . which operated on behalf of.. HAMAS: . United States Code. supervising. Section 2339A(b). 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. by issuing and causing to be issued wire transfers in the amounts indicated. Mufid Abdulqader and Abdulrahman Odeh are charged in Count 11 with the offense of conspiracy to provide funds. supervising. 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 Hamas’s direction or control or if it was organizing. in violation of Title 50. to wit.Page 33 . to HAMAS. or under the control of.. managing.. . To find HLF. currency and monetary instruments. or attempted to provide. Shukri Abu Baker. as those terms are defined in Title 18. to the following organizations. did knowingly provide and attempts to provide material support and resources. . COUNT 11 The defendants HLF. Ghassan Elashi. from the defendant HLF bank accounts in the Northern District of Texas. or otherwise directing the operation of Hamas’s personnel or resources and (2) that the defendant under consideration knew that the entity to which the defendant made the contribution was operating under Hamas’s direction or control or that it was organizing. and Ghassan Elashi guilty of the crimes charged in Counts 2 through 10.

. in the Dallas Division of the Northern District of Texas and elsewhere. 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. by contributing funds. knowingly and willfully conspired. namely HAMAS. goods or services to or for the benefit of Hamas in violation of that order. a Specially Designated Terrorist. by providing the support listed in the count under consideration to the entity identified in that count. confederated and agreed to violate Executive Order 12947.Page 34 . and others known and unknown to the Grand Jury. contributed or attempted to contribute funds. Shukri Abu Baker. Abdulrahman Odeh. and continuing until the date of the Indictment.Case: 15-10303 Document: 00513142705 Page: 44 Date Filed: 08/05/2015 Sections 1701 through 1706. . Ghassan Elashi. goods and services to. In pertinent part. and for the benefit of. Count 11 reads as follows: Beginning from on or about January 25. you must find that the government has proven each of the following elements beyond a reasonable doubt: First: That the defendant under consideration himself. 1995.... a Specially Designated Terrorist. the support listed Appellants’ Brief . and Second: That the defendant under consideration willfully contributed. To find a defendant guilty of the crimes charged in Counts 12 through 21. goods.. the defendants HLF. . Mufid Abdulqader. or services to or for the benefit of Hamas. or by aiding and abetting another defendant or by being aided or abetted by another defendant. or attempted to contribute. COUNTS 12 THROUGH 21 ..

it was necessary for the evidence to prove this element of control in order for the verdict to be legally valid. I instruct you that Hamas has been a Specially Designated Terrorist since January 23. United States v. Moreover. managing. . you may find that a defendant under consideration contributed funds. or otherwise directing the operation of Hamas’s personnel or resources and (b) that the defendant under consideration knew that the entity to which the defendant made the contribution was operating under Hamas’s direction or control or if it was organizing..Case: 15-10303 Document: 00513142705 Page: 45 Date Filed: 08/05/2015 in the count under consideration to the entity identified in that count or that the defendant in question was an officer. supervising. the Appellants were sending funds to Hamas. or agent of the Holy Land Foundation and knowingly participated in that corporation’s willful contribution or attempted contribution of the support listed in the count under consideration to the entity identified in that count. Rather. managing. The government’s claim was that Hamas controlled the zakat committees and. or otherwise directing the operation of Hamas’s personnel or resources. supervising.8531-8582). 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 Hamas’s direction or control or if it was organizing.. direction.” (ROA. ElAppellants’ Brief . Accordingly. The evidence shows that no funds were sent by the Holy Land Foundation to Hamas. as reflected In the jury instructions. 1995.Page 35 . goods.1510303. the government contended that by sending funds to the listed zakat committees. the Fifth Circuit Court of Appeals recognized that the primary issue in the trial was whether Hamas controlled the zakat committees.

However. The government also presented evidence that some Hamas members and sympathizers were on the zakat committees. The Court stated: “The key issues addressed by the evidence were the connection between the defendants and Hamas.3d at 488.Page 36 . Thus.Case: 15-10303 Document: 00513142705 Page: 46 Date Filed: 08/05/2015 Mezain. This is because neither side called any witnesses who were on the zakat 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. how they received and distributed aid or who actually controlled or directed the activities of the committees. 664 F. there was. very little evidence actually addressing the issue. there was no evidence at all as to how the zakat committees operated. these statements were not supported by evidence of actual control or any explanation of what the witness meant by control. worked at the committees or had any personal business transactions with the committees.” 664 F. in fact. 2011).3d 467 (5th Cir. The government additionally offered conclusory statements from some witnesses claiming that Hamas “controlled” the zakat committees. et al. how decisions were made. Appellants’ Brief . and Hamas’s control of the Zakat Committees. Although the question of Hamas’s control of the zakat committees was the key issue in the trial.

are not sufficient to prove the fact. Appellants’ Brief .15- 10303. 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. (ROA. as shown below. 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. Moreover.18545-18581). Government expert witness Matthew Leavitt testified generally about Hamas and zakat committees. 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. Nevertheless. Additionally. as argued previously. conclusory statements of an alleged fact. not supported by evidence supporting the fact. However.Page 37 . As explained under Issue One of this brief. the government’s unsuccessful attempts to meet their burden to prove Hamas’s control of the zakat committees came from three primary witnesses. even in the light most favorable to the government. he claimed that Hamas controlled some of the zakat committees. His testimony did not explain what he meant by saying Hamas “controlled” some zakat committees.Case: 15-10303 Document: 00513142705 Page: 47 Date Filed: 08/05/2015 In fact. Leavitt’s testimony failed to provide any information concerning how the committees operated and how decisions were made.

nonhearsay factual basis for it. and that this proved that Hamas controlled the committees. His testimony was essentially that there were known Hamas members who were on the zakat committees. In fact. as stated under Issue One of this brief. However. More importantly. He had no information or knowledge as to how the committees operated or how decisions were made. 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. on direct appeal. He claimed familiarity with various Muslim groups in America including the Holy Land Foundation. Avi’s testimony does not provide proof of control of the committees by Hamas. the Fifth Circuit. Avi had never been to a zakat committee and had no information or knowledge as to how the committees operated. The government’s third attempt to establish control of the committees by Hamas came with the anonymous Israeli witness Avi.21528). Additionally. he has never been to the West Bank where all of these zakat committees are located.Page 38 . (ROA.Case: 15-10303 Document: 00513142705 Page: 48 Date Filed: 08/05/2015 The government next tried to prove control of the zakat committees with witness Mohamed Shorbagi. sometimes in leadership positions. found that his testimony was inadmissible hearsay. Shorbagi’s testimony was inadmissible because he had no personal.15-10303. is the fact that he gave no testimony at all laying out a factual basis for concluding that Hamas controlled any zakat committees. and not addressed by the Fifth Circuit’s opinion. Moreover. Appellants’ Brief .

23072-73).15-10303.15-10303. while Avi identified members of Hamas who he said were on the zakat committees. (ROA.15-10303. (ROA. 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.22884).1510303.Case: 15-10303 Document: 00513142705 Page: 49 Date Filed: 08/05/2015 For instance. or ever spoken to any Palestinians about the committees. Appellants’ Brief . the government relies on Avi’s affirmative response to the following question concerning each of the listed committees: “Q.2319596). A close examination of Avi’s 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. As stated under Issue One. 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.22997-23002). He has never spoken to any person who received money from a zakat committee. I am just asking you about whether each of these was controlled by Hamas or part of the Hamas social wing?” (ROA. (ROA. he also admitted that not all members of the committees were Hamas members.23037-23044). (ROA. Avi’s testimony further demonstrated that he had no real evidence on the control question.Page 39 . His testimony did no more than the other witnesses to address the question of control from a legal or practical standpoint.15-10303.

This person can do his professional and charitable work separate from his political activity in Palestine as well as in America. Just as Americans can wear different hats. and sits on a zakat committee. so too can Palestinians. and a board member of the Red Cross or a zakat committee.Case: 15-10303 Document: 00513142705 Page: 50 Date Filed: 08/05/2015 An examination of the evidence.Page 40 . First. that Hamas “controls” a zakat committee without providing any Appellants’ Brief . and perform different roles in different aspects of their lives. In other words. what is actually meant by the term “control” and second. The evidence simply shows that zakat committees were composed of community leaders. The question of whether the government proved that Hamas controlled these committees involves two sub-questions. means that the Republican party controlled Walmart. in no ways proves that the committee was controlled by Hamas. will show that Hamas did not control these committees any more than the fact that a person is a member of the Republican party. some of whom were Hamas sympathizers and some of whom were not. what is the legal effect of government witnesses claiming. in a conclusory fashion. There is no evidence that the Hamas sympathizers or members worked in the committees on behalf of Hamas. and is an officer of Walmart. the fact that a person may be a Hamas activist. with a proper application of the law. any more than there is evidence that a Fatah activist on the committee worked on the committee on behalf of Fatah. a member of Hamas or a Republican by political belief. A person can be a doctor or lawyer by profession.

although the government’s testimony focused on control. 2. n. To cause (something or someone) to move on a particular course. or law that limits the amount or growth of something DIRECT Black’s Law Dictionary (9th Ed. To aim (something or someone). However. 2009). under the meaning of either term the government evidence falls short. the power or authority to manage. by contract. to guide (something or someone). method. The following are the pertinent definitions of these terms: CONTROL Black’s Law Dictionary (9th ed. Control.Case: 15-10303 Document: 00513142705 Page: 51 Date Filed: 08/05/2015 factual basis to support their conclusions. Meaning of Control or Direct The jury instructions used the terms direction or control. Merriam-Webster Dictionary con•trol : 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). whether through ownership of voting securities. or otherwise. 2009) direct. 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. vb (14c) 1. to govern.Page 41 . (16c) The direct or indirect power to govern the management and policies of a person or entity. or oversee <the principal exercised control over the agent>. 4. 3. direct. To instruct (someone) with Appellants’ Brief . control.

996 F.2d 482 (S. See also.Case: 15-10303 Document: 00513142705 Page: 52 Date Filed: 08/05/2015 authority.Supp. 2008) (not designated for publication). energizing. Monieson v. 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. 1993) (finding company chairman to be controlling person when he made management and hiring decisions). International Financial Services.2d 852 (7th Cir. 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. in Linn v. 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. Direct.Page 42 . 323 F. In Commodity Futures Trading Commission v. Inc. 5. 281 Fed. Commodity Futures Trading Commission. For instance.D. To address (something or someone). 2004).Y.N. United States.Appx. Appellants’ Brief . Sung Bum Chang. 339 (5th Cir.. United States v. Merriam-Webster Dictionary di•rect 2 a: to regulate the activities or course of b: to carry out the organizing.

436 (Bank. The Appellants’ Brief .R. Under the definition of control and direction in these cases. Ind.. as well as that found in Black’s Law Dictionary and the Merriam-Webster Dictionary. 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. 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).Page 43 . N. As explained in the cases below. The government presented no evidence from any witness that had any knowledge of how the committees were managed or how decisions were made. Inc. the evidence in the case at bar did not come close to establishing that Hamas exercised direction or control over the zakat committees. a conclusory statement is not evidence. Not a single witness provided any information that the Hamas organization controlled or directed the activities of these committees.D. In re Associated Bicycle Services. and without an evidentiary basis to support the conclusion. setting hours or work. right to discharge or terminate). These include such things as hiring. 128 B.Appx. furnishing tools or equipment for the work. there is a failure of proof. supervising. 985 (5th Cir. 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.Case: 15-10303 Document: 00513142705 Page: 53 Date Filed: 08/05/2015 237 Fed.

Appx. 13 F. Stine. 458 F.Supp. United States v. 366 (E.D. United States v. was “straw” and was insufficient to support a finding of probable cause for search. 2006) Appellants’ Brief . Jones.000 feet of playground. a felon. 1978) . 2007) (not designated for publication) . Smith.3d 380 (10th Cir. United States v. Pa.2d 80 (5th Cir. 66 (2nd Cir.Appx.Immigration judge’s adverse credibility determination on asylum applicant’s claim was conclusory and not supported by substantial evidence. 197 Fed.Case: 15-10303 Document: 00513142705 Page: 54 Date Filed: 08/05/2015 pertinent cases are: United States v.Page 44 . 246 Fed.Petitioner’s conclusory statement that Government engaged in conspiracy to violate his constitutional rights was insufficient to state constitutional claim in habeas corpus. 1993) . where there was absolutely no evidence in record that playground apparatus existed in the park.Search warrant affidavit containing the conclusory statement that purchase of a rifle by the wife of the defendant. Undercover officers conclusory statement that park had playgrounds was not enough.There was insufficient evidence to prove that park was “playground” to support finding that defendant distributed crack cocaine within 1. 614 F. U. Ben Shou Zhu v. 657 (9th Cir. Petitioner’s claim in habeas corpus that Government illegally searched his residence was wholly conclusory and unsupported by factual allegations or proof. Dept. 1980) . S. Rodriguez-Hernandez. of Justice.

do not bind the ALJ in his determination as to whether claimant for social security disability insurance is disabled. 793 F. United States v. 662 (2009) .3d 606 (8th Cir.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. 547 F. Ashcroft v. Cox v. 1545 (D. 1992) . Barnhart. 345 F. when assessing the sufficiency of a civil complaint. there was a complete failure of proof that checks had been mailed. 2003) .S.” Appellants’ Brief . if unsupported by medical records.2d 432 (8th Cir. 556 U. United States v.Supreme Court emphasized that.Conclusory statements by physician. Colo.Case: 15-10303 Document: 00513142705 Page: 55 Date Filed: 08/05/2015 (superseding opinion. a court must distinguish factual contention and “threadbare recitals of a cause of action supported by mere conclusory statements. was insufficient to create a contested issue so as to require an evidentiary hearing on his motion to suppress.Page 45 .Government failed to establish that officer fully advised defendant of his Miranda rights despite conclusory statements that defendant was Mirandized. 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.Supp. Reece. Iqbal. Gilmer. 1977) .

1995) .Page 46 . Harvey v. City of Charlotte.Neither conclusory statements that plaintiff suffered emotional distress nor mere fact that constitutional violation occurred supports award of compensatory damages. As these cases demonstrate. are not sufficient to avoid summary judgment. 49 F. Price v. 285 (D. The court’s 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 government cited language from the Appellants’ Brief . 2005) .Case: 15-10303 Document: 00513142705 Page: 56 Date Filed: 08/05/2015 Metz v. not grounded in specific facts. 726 (7th Cir.3d 124 (4th Cir.Plaintiff’s conclusory statements expressing his belief that the defendants treated men differently than women were insufficient proof. 352 F. A review of the record will show that there was no evidence supporting the claim that Hamas controlled the zakat committees.3d 714. 367 F. 2004) Conclusory statements. Conn.. In response to Appellants’ argument.Physician’s conclusory letter diagnosing claimant as disabled without supporting evidence does not amount to substantial evidence of disability. The court must look beyond these conclusory statements to determine if there was any evidence supporting the conclusion. 1996) .3d 374 (8th Cir.Supp. Chicago Transmit Authority. Shalala. Lucas v. Mark. a conclusory statement is something different and distinguishable from evidence. 93 F.

They say Hamas made efforts to obtain control. However. The government further argues that HLF “functioned as a fund-raising entity for Hamas. 49).” (p. even if it did. Making efforts is not the same as obtaining control. and the Court of Appeals was not asked to decide if control was proven.Case: 15-10303 Document: 00513142705 Page: 57 Date Filed: 08/05/2015 Court of Appeals’ opinion concerning the “formidable” evidence of guilt. the case was not about sympathy. However. They say Hamas efforts included installing a critical mass Appellants’ Brief . 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. 49. and some defendants and Hamas. the government’s own statement shows that there was no control of the committees by Hamas. 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. 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. it is necessary to understand what they were analyzing. it was about control. While the evidence proved no such thing. in order to understand the opinion of the Court of Appeals.” p. this is a completely different question from whether Hamas controlled the zakat committees. Additionally.Page 47 . However. 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.

or Hamas sympathizers. while there was evidence that some members of Hamas. Like the government.” However. However.” referring to Hamas. the statements made by some persons that certain committees are “ours. it is likely nothing more than a reflection of sympathy for Hamas within some committees.Page 48 . This left the Fifth Circuit with the impression Appellants’ Brief . even if this was true. does not prove control. What is meant by “ours” is unclear. as stated previously. the government does not show that Hamas did this or how. but it does not equate with control. it resulted in control of the committees. The use of the word “ours” cannot substitute for actual evidence proving control. this is not the same as evidence of control of the committees by Hamas. Rather. 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. were involved with the zakat committees. Most importantly.Case: 15-10303 Document: 00513142705 Page: 58 Date Filed: 08/05/2015 of Hamas members in the controlling positions. the district court relied on the Fifth Circuit’s opinion on direct appeal to conclude that there was “extensive evidence that the zakat committees in the indictment were controlled by Hamas. Likewise. The reliance of the district court on the Fifth Circuit’s previous opinion really just illustrates the serious problem created by counsel not challenging the legal sufficiency of the evidence on appeal.

518). Our failure to raise this argument was error by counsel. This argument would have been a stronger argument than some of the issues we raised on appeal. This is an issue that is certainly debatable and for that reason a certificate of appealability should issue.6. (ROA. sufficient evidence of this necessary fact. 518.1510308. in fact. 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. Baker’s defense counsel Nancy Hollander stated: “I agree that a legitimate argument could have been made concerning the sufficiency of the evidence on appeal. ARGUMENT In addition to the ineffectiveness on appeal argued above.15-10304. 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. it was ineffective for defense counsel to not make this argument on appeal.” Appellants’ Brief . that 8 In her affidavit. This argument is set out in the §2255 Motion and Memorandum.8 Since the truth is that there was no evidence of control of the zakat committees by Hamas.7. In order for Abdulqader and Odeh to be guilty of conspiracy. Abdulqader and Odeh received ineffective assistance for this additional reason.Case: 15-10303 Document: 00513142705 Page: 59 Date Filed: 08/05/2015 that there was. ROA.Page 49 . they would need to know the unlawful purpose of the agreement and to have joined in it willfully.

at the scene of an event. There is no evidence that Abdulqader and Odeh had any knowledge as to where the specific funds raised by HLF went. the court explained the law of conspiracy. “the defendant’s knowledge of the unlawful objective and voluntary agreement to join the conspiracy. as follows: “To prove a federal conspiracy offense. 553 F. 7. In United States v. 2013). Arledge. No.” United States v. (vol. Without knowledge that funds were going to a specific zakat committee that was allegedly controlled by Hamas. 727 F.Page 50 . or the mere fact that certain persons may have associated with each Appellants’ Brief . Does Hamas control every Zakat Committee in the West Bank and Gaza? A. Abdulqader and Odeh cannot be guilty of conspiracy. Brown. inter alia. 888 (5th Cir. This argument is made even more compelling when the testimony of government expert witness Matthew Leavitt is considered. Do they control a majority of them? A. even with knowledge that a crime is being committed.3d 329. 102). They control many. 2008). . Leavitt stated the following: “Q.” 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. 338 (5th Cir. the government must establish.3d 881.Case: 15-10303 Document: 00513142705 Page: 60 Date Filed: 08/05/2015 is with the intent to further the unlawful purpose. Q. . p. As the district court instructed the jury: Mere presence .

” In the case at bar. but who happens to act in a way that advances some purpose of a conspiracy. there is no evidence at all that he even knew that the funds and charity were contributed to a particular zakat committee. He had no management role in HLF generally and no say in where the funds went. Also. does not necessarily establish proof of the existence of a conspiracy. See Jackson v. Like Abdulqader. and may have assembled together and discussed common aims and interests.S. 443 U. The evidence shows Odeh was the manger of the HLF office in New Jersey. The evidence shows Abdulqader never worked for or was an officer of the HLF. Virginia.Page 51 . In order for Abdulqader and Odeh to be guilty. 307 (1979). there is no evidence that he knew that the funds and charity were contributed to a particular zakat committee. Constitution.Case: 15-10303 Document: 00513142705 Page: 61 Date Filed: 08/05/2015 other. Their convictions are therefore in violation of due process under the U. Moreover. there is insufficient evidence for a rational trier of fact to find Abdulqader or Odeh guilty of any count. He also had no management role in HLF generally and no say in where the funds went. they would need to have knowledge of this unlawful object. the alleged unlawful object of the conspiracy was to provide funds and aid to Hamas. a person who has no knowledge of a conspiracy. much less. Appellants’ Brief . does not thereby become a conspirator. that a committee was allegedly controlled by Hamas. much less that a committee was allegedly controlled by Hamas. Under these circumstances. S.

However. In rejecting Odeh’s argument. The district court further cited testimony that Odeh accepted a donation. in a 1996 video from a fundraising event. Based on this. As to Abdulqader. the district court cited evidence that Odeh once spoke approvingly about a Hamas suicide attack. Abdulqader sent greetings to Hamas leaders. where the donor stated the money was for Appellants’ Brief . it was ineffective for appellate counsel to not raise this argument on appeal. much less that the zakat committee was controlled by Hamas. 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.Case: 15-10303 Document: 00513142705 Page: 62 Date Filed: 08/05/2015 In rejecting this argument. A close review of the district court’s opinion shows that none of these actions proved that Abdulqader had knowledge that the funds raised were going to any particular zakat committee. the Hamas flag was visible at some events where Abdulqader’s band performed songs praising Hamas. 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 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 HLF’s behalf to speak and raise funds.Page 52 . the district court cited testimony from the trial.

Yet. and the Sixth Amendment to the U. Constitution was violated by the ineffective assistance in this case.Page 53 . This question was the key one in this case Appellants’ Brief .Case: 15-10303 Document: 00513142705 Page: 63 Date Filed: 08/05/2015 “relief supplies and weapons to crush the hated energy. the standard for issuance of a certificate of appealability does not require proof that the Appellants will ultimately prevail on this case. 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. S. However. the fact remains that there was no proof that Odeh knew the funds raised went to any particular zakat committee. Based on this. 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. despite this evidence.” Other evidence cited was material found in Odeh’s office that concerned Hamas. both at trial and on appeal. it constitutes ineffective assistance of counsel to not raise this argument on appeal. or that Hamas controlled the zakat committee where the funds went. The facts underlying the ineffective assistance of counsel claims are certainly substantial. A reasonable jurist could and should find this issue debatable and thus the certificate of appealability should be issued. the record shows that defense counsel failed to adequately address the question of whether Hamas actually controlled the zakat committees. Here. Rather.

Texas 75201 (214) 468-8100 (214) 468-8104 fax Attorney of Record For Appellants Appellants’ Brief .Page 54 . No fair minded jurist can conclude that this is not a serious and substantial question. Suite 250 Dallas. UDASHEN State Bar No. /s/ Gary A. as well as an application of fundamental notions of due process require the granting of this certificate of appealability. UDASHEN & ANTON 2311 Cedar Springs Road. 20369590 SORRELS. no fair minded jurist can conclude that this question was not even worthy of an evidentiary hearing.Case: 15-10303 Document: 00513142705 Page: 64 Date Filed: 08/05/2015 and without proof of this control there is no proof that the Appellants committed any offense. Basic notions of fair play. Respectfully submitted. Likewise. Udashen GARY A. 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.

S.palmer@usdoj..Case: 15-10303 Document: 00513142705 Page: 65 Date Filed: 08/05/2015 CERTIFICATE OF SERVICE I certify that today. to joseph. 2015.W. Udashen GARY A. U.Page 55 . a copy of the Brief for Appellant was electronically served on Joseph Palmer. Washington.gov. N. August 5. D. 950 Pennsylvania Avenue. /s/ Gary A. 20530.C. Suite 6500. UDASHEN Appellants’ Brief . Department of Justice.

App. R. UDASHEN Appellants’ Brief .7(c).2.2. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Wordperfect X5 in 14 point Times New Roman. R. App. 32(a)(5) and the type style requirements of Fed. /s/ Gary A.Case: 15-10303 Document: 00513142705 Page: 66 Date Filed: 08/05/2015 CERTIFICATE OF COMPLIANCE Pursuant to 5TH CIR. P. excluding the parts of the brief exempted by Fed. P. 1.636 words.7(b).Page 56 . App. 2. undersigned counsel certifies that this brief complies with the type-volume limitations of 5TH CIR. 32. R. R. This brief complies with the type-volume limitation of Fed. P. This brief complies with the typeface requirements of Fed. R. P. 32(a)(7)(B) because this brief contains 12. Udashen GARY A. 32. App. R. 32(a)(7)(B)(iii).