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United States v. Holy Land Foundation:

Jury Instructions

Hon. A. Joe Fish

Northern District of Texas

September 19, 2007

The following jury instructions were prepared by the Northern District of Texas s

United States District Judge A. Joe Fish in a trial for conspiracy to fund terrorism, United States v. Holy Land Foundation, No. 3:04-cr-240 (N.D. Tex. July 26, 

2004).

Court s Instructions to the Jury

MEMBERS OF THE JURY:

In any jury trial there are, in effect, two judges. I am one of the judges; the other

is the jury. It is my duty to preside over the trial and to determine what evidence 

is proper for your consideration. It is also my duty at the end of the trial to explain to you the rules of law that you must follow and apply in arriving at your

verdict.

You, as jurors, are the judges of the facts. But in determining what actually

happened that is, in reaching your decision as to the facts it is your sworn

duty to follow all of the rules of law as I explain them to you. You have no right

to disregard or give special attention to any one instruction, or to question the

wisdom or correctness of any rule I may state to you. You must not substitute or

follow your own notion or opinion as to what the law is or ought to be. It is your

duty to apply the law as I explain it to you, regardless of the consequences.

It is also your duty to base your verdict solely upon the testimony and evidence in the case, without prejudice or sympathy. That was the promise you

made and the oath you took before being accepted by the parties as jurors, and

they have the right to expect nothing less.

In the following instructions, I will first give you some general instructions

which apply in every case, such as instructions about burden of proof and how to

judge the believability of witnesses. Then I will give you some specific rules of

law about this particular case, and finally I will explain to you the procedures you 

should follow in your deliberations.

Burden of Proof

The defendants in this case have been charged with thirty-six separate violations 

of federal criminal law. The indictment, however, is simply a description of the

charges made by the government against the defendants; it is not evidence of the

defendants guilt. The defendants are presumed by the law to be innocent. The presumption of

innocence means that each defendant starts the trial with a clean slate. In other

words, I instruct you that a defendant must be presumed by you to be innocent

throughout your deliberations until such time, if ever, you as a jury are satisfied 
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that the government has proven that defendant guilty beyond a reasonable doubt. Unless you are satisfied beyond a reasonable doubt that a defendant is guilty, the

presumption of innocence alone is sufficient to find him not guilty. The law does not require a defendant to prove his innocence or to produce

any evidence at all, and no inference whatever may be drawn from the election of 

a defendant not to testify. The government has the burden of proving each of the

defendants guilty beyond a reasonable doubt. This burden never shifts to a defendant, and if the government fails to meet its burden on a crime charged against

a defendant, you must acquit that defendant of that crime. While the government s burden of proof is a strict or heavy burden, it is not

necessary that a defendant s guilt be proved beyond all possible doubt. It is only

required that the government s proof exclude any reasonable doubt concerning 

a defendant s guilt. A reasonable doubt is a doubt based upon reason and common sense after

careful and impartial consideration of all the evidence in the case. Proof beyond a

reasonable doubt, therefore, is proof of such a convincing character that you

would be willing to rely and act upon it without hesitation in the most important 

of your own affairs. The Evidence

As previously stated, it is your duty to determine the facts. In doing so, you must 

consider only the evidence presented during the trial, including the sworn testimony of the witnesses and the exhibits, including stipulations. In reaching your

decision, it would be improper for you to consider any personal feelings you may 

have about an individual defendant s culture, national origin, race, or religion. 

All persons are entitled to the presumption of innocence. It would be equally improper for you to allow any feelings you might have about the nature of the crime 

charged to interfere with your decision-making process. Remember that any statements, objections, or arguments made by the lawyers are not evidence. If a lawyer has asked a witness a question that contains an

assertion of fact, you must not consider the assertion as evidence of that fact unless the witness has affirmed or adopted it by his or her answer. In other words, the lawyer s statements in asking a question are not evidence. The function of the lawyers is to point out those things that are most significant or most helpful to their side of the case, and in so doing to call your attention 

to certain facts or inferences that might otherwise escape your notice. In the final

analysis, however, it is your own recollection and interpretation of the evidence 

that controls in the case. What the lawyers say is not binding upon you. During the trial I sustained objections to certain questions. You must disregard those questions entirely. Do not speculate as to what the witness would have 

said if permitted to answer. Your verdict must be based solely on the legally admissible evidence and testimony. Also, do not assume from anything I may have said during the trial that I

have any opinion concerning any of the issues in this case. Except for my instructions to you on the law, you should disregard anything I may have said during the 

trial in arriving at your own findings as to the facts.
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While you should consider only the evidence, you are permitted to draw such

reasonable inferences from the testimony and exhibits as you feel are justified in

the light of common experience. In other words, you may make deductions and

reach conclusions that reason and common sense lead you to draw from the facts 

that have been established by the evidence. You should not be concerned about whether the evidence is direct or circumstantial. Direct evidence is the testimony of one who asserts actual knowledge of a fact, such as an eye witness. Circumstantial evidence is proof of a

chain of facts and circumstances indicating that the defendant is either guilty or

not guilty. The law makes no distinction between the weight you may give to

either direct or circumstantial evidence. Credibility, Impeachment, Weight of the Evidence

I remind you that it is your job to decide whether, on each count of the indictment, the government has proven, beyond a reasonable doubt, the guilt of the

defendants charged in that count. In doing so, you must consider all of the evidence. This does not mean, however, that you must accept all of the evidence as

true or accurate. You are the sole judges of the credibility or believability of each witness

and the weight to be given that witness s testimony. An important part of your

job will be making judgments about the testimony of the witnesses who testified

in this case. You should decide whether you believe what each person had to say, 

and how important that testimony was. In making that decision, I suggest that

you ask yourself a few questions: Did the witness impress you as honest? Did the 

witness have any particular reason not to tell the truth? Did the witness have a

personal interest in the outcome of the case? Did the witness have any relationship with either the government or the defense? Did the witness seem to have a

good memory? Did the witness clearly see or hear the things about which he or

she testified? Did the witness have the opportunity and ability to understand the

questions clearly and answer them directly? Did the witness s testimony differ

from the testimony of other witnesses? These are a few of the considerations that

will help you determine the accuracy of what each witness said. Your job is to think about the testimony of each witness you have heard and

decide how much you believe of what each witness had to say. In making up

your mind and reaching a verdict, do not make any decisions simply because

there were more witnesses on one side than on the other or because the case of

one side took longer to present than the other. Do not reach a conclusion on a

particular point just because there were more witnesses testifying for one side on

that point. Inconsistencies or discrepancies in the testimony of a witness, or between the

testimony of different witnesses, may or may not cause you to discredit such testimony. Two or more persons witnessing an incident or a transaction may see or

hear it differently, and innocent misrecollection, like failure of recollection, is not 

an uncommon experience. In weighing the effect of a discrepancy, always consider whether it pertains to a matter of importance or to an unimportant detail, and whether the discrepancy results from innocent error or intentional falsehood.
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The testimony of a witness may be discredited by showing that the witness

testified falsely concerning a material matter, or by evidence that at some other

time the witness said or did something, or failed to say or do something, which is

inconsistent with the testimony the witness gave at this trial. If you believe that a

witness has been discredited in this manner, it is your exclusive right to give the

testimony of that witness whatever weight you think it deserves. Expert Witnesses

If scientific, technical or other specialized knowledge might assist you in understanding the evidence or in determining a fact in issue, a witness qualified by

knowledge, skill, experience, training, or education may testify and state an opinion concerning such matters. Merely because such a witness has expressed an opinion does not mean, however, that you must accept this opinion. You should judge such testimony

like any other testimony. You may accept it or reject it, and give it as much

weight as you think it deserves, considering the witness s education and experience, the soundness of the reasons given for the opinion, and all other evidence

in the case. Transcripts of Tape Recorded Conversation

Certain exhibits have been identified as typewritten transcripts and translations, 

either in whole or in part, from Arabic into English of the oral conversations 

which can be heard on the tape recordings received in evidence. The transcripts 

also purport to identify the speakers engaged in such conversations. I have admitted these transcripts for the limited and secondary purpose of

aiding you in following the content of the conversations to which they relate as

you listen to the tape recordings, particularly those portions spoken in a foreign

language, and also to aid you in identifying the speakers. You are specifically

instructed that whether each transcript correctly or incorrectly reflects the content 

of the conversation to which it relates, or the identities of the speakers in that

conversation, is entirely for you to determine based upon your own evaluation of

the testimony you have heard concerning the preparation of the transcripts, and

from your own examination of the transcripts in relation to your hearing of the

tape recordings themselves as the primary evidence of their own contents. If you

should determine that a transcript is in any respect incorrect or unreliable, you

should disregard it to that extent. Summaries and Charts

Certain charts and summaries have been shown to you solely to help explain

facts disclosed by books, records, or other documents which are in evidence in

the case. These charts and summaries are not evidence or proof of any facts. You

should determine the facts from the evidence. Other charts and summaries have been received into evidence. These charts

and summaries are valid only to the extent that they accurately reflect the underlying supporting evidence. You should give them only such weight as you think

they deserve based on the underlying evidence.
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Stipulations

When the parties agree or stipulate to certain facts, you may accept the stipulation as evidence and regard those facts as proved. You are not required to do so, 

however, since you are the sole judges of the facts. Evidence Admitted for a Limited Purpose

Some evidence was admitted for a limited purpose only. When I instructed you 

that an item of evidence was admitted for a limited purpose, you must consider it

only for that limited purpose and for no other. Certain statements of defendants in this case may be considered only in connection with the charges against the defendant who made the statement. I will list 

those statements for you now. 1. The defendant Mohammad El-Mezain:

(a) The statement of the defendant El-Mezain, in his interview with

the Federal Bureau of Investigation (FBI), that he was a member of the

Muslim Brotherhood. (b) The statement of the defendant El-Mezain, in his interview with

the FBI, that one of his cousins, Ahmed Hamdan, was a Hamas supporter 

who was among the deportees from Israel in December 1992. 2. The defendant Shukri Abu Baker:

(a) The statement of the defendant Abu Baker, in his deposition in

the Boim civil suit, that he was a member of the advisory board of the Islamic Association for Palestine (IAP). (b) The statement of the defendant Abu Baker, in his declaration in

the civil suit the Holy Land Foundation (HLF) filed against the government, that he started working as a full-time salaried employee of the HLF 

in February 1990. 3. The defendant Mufid Abdulqader:

(a) The statement of the defendant Abdulqader, in his interview with

the FBI, that Khalid Mishal is his half-brother. (b) The statement of the defendant Abdulqader, in his interview with

the FBI, that he moved to Dallas in 1995. Certain exhibits were introduced to show the basis for the expert s opinion

during the testimony of Dr. Levitt, Mr. Avi and Dr. Brown, including: government s exhibit 6-59, introduced during Dr. Levitt s testimony; government s exhibits 6-59 and 24-75 during Mr. Avi s testimony; and defense exhibits 1065, 1109, 1204, 1205, 1206, and 1207 during Dr. Brown s testimony. These exhibits

were admitted to assist you, if they do, in evaluating the testimony of these expert 

witnesses. That is the sole purpose for which you may consider them. Consider Only Crimes Charged

You are here to decide whether the government has proven, beyond a reasonable 

doubt, that each defendant is guilty of the crimes with which he has been

charged. A defendant is not on trial for any act, conduct, or offense not alleged in 

the indictment.
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You should not be concerned with the guilt of any other person or persons

not on trial as a defendant in this case. You should not speculate about the fate of 

other persons charged in the indictment who are not on trial. Nor should you speculate about the reasons for their absence from this trial. If the evidence in the

case convinces you beyond a reasonable doubt of the guilt of a defendant under

consideration, you should find that defendant guilty, even though you may believe that one or more other unindicted or indicted persons are also guilty. On the 

other hand, if any reasonable doubt about a defendant s guilt remains in your

minds after impartial consideration of all the evidence in the case, it is your duty

to find that defendant not guilty. Similar Acts

You have heard evidence of acts of the defendants which may be similar to those 

charged in the indictment, but which were committed on other occasions. You

must not consider any of this evidence in deciding if a defendant under consideration committed the acts charged in the indictment. However, you may consider 

this evidence for other, very limited, purposes. If you find beyond a reasonable doubt from other evidence in this case that a

defendant under consideration did commit the acts charged in the indictment, then you may consider evidence of the similar acts allegedly committed on other

occasions to determine, Whether the defendant under consideration had the state of mind or intent necessary to commit the crime charged in the indictment;

or

whether the defendant under consideration committed the acts for which he is on 

trial knowingly and not by accident or mistake. These are the limited purposes for which any evidence of other similar acts

may be considered. Separate Consideration of Each Count

A separate crime is charged against some or all of the defendants in each count of 

the indictment. Each count, and the evidence pertaining to it, should be considered separately. Similarly, the case of each defendant should be considered separately and individually. The fact that you may find one or more of the defendants guilty or not guilty of any of the crimes charged should not control your

verdict as to any other crime or any other defendant. You must give separate consideration to the evidence as to each count and each defendant. Punishment Not Your Concern

Also, the punishment provided by law for the crimes charged in the indictment is 

a matter exclusively within my province, and should never be considered by you

in any way in arriving at an impartial verdict as to the guilt or innocence of a defendant in this case.
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Indictment Not Evidence

Please remember that the indictment is not evidence; a copy of it will be provided 

to you during your deliberations only so that you will know exactly what each 

defendant in this case is accused of doing. Corporate Defendant/Agency

One of the defendants in this case, the Holy Land Foundation for Relief and Development, also known as the HLF, is a private corporation. The Holy Land

Foundation for Relief and Development has been charged, along with the other

defendants, in Counts 1 through 32. A corporation is a legal entity and may be

found guilty of a criminal offense just like a natural person. Of course, a private corporation can only act through its agents, that is, the

natural persons who are its directors, officers, employees, or other persons authorized to act for it. A corporation is legally responsible for the acts or omissions of 

its agents made or performed in the course of their employment. Thus, before you may find the HLF guilty of a crime, you must find that the

government has proven beyond a reasonable doubt that all of the elements of the

crime under consideration, as I will explain them to you, have been met with respect to the HLF in the form of acts or omissions of its agents which were performed within the scope of their employment. Acts or omissions performed within the scope of an agent s employment may

be shown in several ways. First, if the act or omission was specifically authorized 

by the HLF, it would be within the scope of the agent s employment. Second, even if the act or omission was not specifically authorized by the

HLF, it may still be within the scope of an agent s employment if both of the following have been proven: that the agent intended that his act or omission would

produce some benefit to the HLF, and that the agent was acting within his authority. An act or omission is within an agent s authority if it was directly related to

the performance of the kind of duties that the agent had the general authority to

perform. Finally, if you find that the agent was not acting within the scope of his authority at the time, you should then consider whether the HLF later approved the

act or omission. An act or omission is approved after it is performed when another agent of the corporation, having full knowledge of the act or omission, and

acting within the scope of his employment as I have just explained it to you, approves the act or omission by his words or conduct. The HLF is responsible for

any act or omission approved by its agents in this manner. Definitions of Certain Terms

On or About

You will note that the indictment charges that each crime in this case was committed on or about a certain date. The proof need not establish with certainty

the exact date of an alleged crime. It is sufficient if the evidence in the case establishes beyond a reasonable doubt that each crime was committed on a date

reasonably near the date alleged in the indictment.
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Knowingly

The word knowingly, as that term is used from time to time in these instructions, means that the act to which it refers was done voluntarily and intentionally, 

and not because of mistake or accident. Willfully

The word willfully, as that term has been used from time to time in these instructions, means that the act to which it refers was committed voluntarily and

purposely, with the specific intent to do something the law forbids; that is to say, with bad purpose either to disobey or disregard the law. Contentions of the Parties

The government contends, in the superseding indictment in this case, that all of 

the defendants on trial are guilty of several different federal crimes: conspiracy to

provide material support to a foreign terrorist organization (Count 1); providing

material support to a foreign terrorist organization (Counts 2 10); conspiracy to

provide funds, goods and services to a specially designated terrorist (Count 11);

providing funds, goods and services to a specially designated terrorist (Counts

12 21); conspiracy to commit money laundering (Count 22); and money laundering (Counts 23 32). In addition, the government contends that the defendants

Shukri Abu Baker and Ghassan Elashi are guilty of conspiracy to impede and

impair the Internal Revenue Service and to file a false return of an organization 

exempt from income tax (Count 33) and of filing false returns of an organization 

exempt from income tax (Counts 34 36). I will give you further instructions later on what the government must show

to prove these contentions. The defendants, for their part, contend that the Holy Land Foundation provided charity to needy people in the Middle East, in the United States, and in

other parts of the world. They contend that the zakat committees and charitable

societies named in the superseding indictment were neither part of nor controlled 

by Hamas. First Amendment

The First Amendment to the United States Constitution provides,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the

press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. This amendment guarantees to all persons in the United States the right to

freedom of speech, freedom of religion, and freedom of association. Because of

these constitutional guarantees, no one can be convicted of a crime simply on the

basis of his beliefs, his expression of those beliefs, or his associations.
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Aiding and Abetting

The guilt of a defendant in a criminal case may be established without proof that 

that defendant personally did every act constituting the offense alleged. The law

recognizes that, ordinarily, anything a person can do for himself may also be accomplished by him through the direction of another person as his agent, or by

acting in concert with, or under the direction of, another person or persons in a

joint effort or enterprise. Title 18, United States Code (USC), Section 2, provides,

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a

principal. (b) Whoever willfully causes an act to be done which if directly performed

by him or another would be an offense against the United States, is punishable

as a principal. Under this statute, if another person is acting under the direction of a defendant under consideration or if the defendant under consideration joins another

person and performs acts with the intent to commit a crime, then the law holds

that defendant responsible for the acts and conduct of such other person(s) just as 

though the defendant had committed the acts or engaged in such conduct himself. Before any defendant may be held criminally responsible for the acts of others, however, it is necessary that he deliberately associate himself in some way

with the crime and participate in it with the intent to bring about the crime. Of

course, mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that a defendant under consideration

either directed or aided and abetted the crime unless you find beyond a reasonable doubt that that defendant was a participant and not merely a knowing spectator. In other words, you may not find any defendant guilty, unless you find

beyond a reasonable doubt that every element of the crime under consideration, as defined in these instructions, was committed by some person or persons, and

that the defendant under consideration voluntarily participated in its commission

with the intent to violate the law. For you to find a defendant guilty of aiding and abetting a crime, you must

be convinced that the government has proven each of the following beyond a reasonable doubt:

First: That the crime under consideration was committed by one or more

persons;

Second: That the defendant under consideration associated himself with the

criminal venture;

Third: That the defendant under consideration purposefully participated in

the criminal venture; and

Fourth: That the defendant under consideration sought by action to make

that venture successful. To associate with the criminal venture means that a defendant under consideration shared the criminal intent of the principal. This element cannot be established if that defendant had no knowledge of the principal s criminal venture.
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To participate in the criminal venture means that a defendant under consideration engaged in some affirmative conduct designed to aid the venture or assisted the principal of the crime. Conspiracy

Some of the counts in the indictment charge some or all of the defendants with

conspiracy to commit a crime. Before I instruct you in detail on the specific elements of the crimes charged in the indictment, I first want to instruct you on general principles of the law of conspiracy. A conspiracy is an agreement between two or more persons to join together to accomplish some unlawful purpose. It is a kind of partnership in crime in

which each member becomes the agent of every other member. It is a crime separate from the substantive crimes which are alleged to be the object or purpose of

the agreement. For you to find one or more of the defendants guilty of conspiracy, you must

be convinced that the government has proven each of the following elements

beyond a reasonable doubt:

First: That the defendant charged with the conspiracy and at least one other

person made an agreement to engage in conduct that violates federal criminal

law, as charged in the indictment;

Second: That the defendant under consideration knew the unlawful purpose

of the agreement and joined in it willfully, that is, with the intent to further the

unlawful purpose; and

Third: That one or more of the conspirators, during the existence of the

conspiracy, knowingly committed at least one overt act, in order to accomplish

some object or purpose of the conspiracy. One may become a member of a conspiracy without knowing all the details

of the unlawful scheme or the identities of all the other alleged conspirators. If a

defendant under consideration understands the unlawful nature of a plan or

scheme and knowingly and intentionally joins in that plan or scheme on one occasion, that is sufficient to convict him for conspiracy, even though he had not

participated before and even though he played only a minor part. The government need not prove that the alleged conspirators entered into any

formal agreement, nor that they directly stated between themselves all the details 

of the scheme. Similarly, the government need not prove that all of the details of

the scheme alleged in the indictment were actually agreed upon or carried out. It

is not necessary that any overt act proven by the government be an overt act alleged in the indictment. Nor must the government prove that all of the persons

alleged to have been members of the conspiracy were such, or that the alleged

conspirators actually succeeded in accomplishing their unlawful objectives. On the other hand, mere presence at the scene of an event, even with knowledge that a crime is being committed, or the mere fact that certain persons may

have associated with each other, and may have assembled together and discussed

common aims and interests, does not necessarily establish proof of the existence 

of a conspiracy. Also, a person who has no knowledge of a conspiracy, but who
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happens to act in a way which advances some purpose of a conspiracy, does not

thereby become a conspirator. You must determine whether each of the conspiracies charged in the indictment (in Counts 1, 11, 22, and 33) existed, and, if they did, whether each defendant charged in those counts was a member of each conspiracy. If you find that

any of the conspiracies charged did not exist, then you must return a not guilty

verdict as to that conspiracy, even if you find that some other conspiracy or conspiracies existed. Similarly, if you find that a particular defendant was not a

member of a conspiracy charged in a particular count of the indictment, then you

must find that defendant not guilty of the charge in that count, even if that defendant may have been a member of some other conspiracy. A conspirator is responsible for a crime committed by other conspirators if

the conspirator was a member of the conspiracy when the crime was committed

and if the crime was committed in furtherance of, or as a foreseeable consequence of, the conspiracy. Attempt

It is a crime for anyone to attempt to commit a violation of certain specified laws 

of the United States. In this case, the defendants are charged with attempting to

violate certain laws that will be described in detail later in these instructions. For

you to find a defendant guilty of attempting to commit these unlawful acts, you

must be convinced that the government has proved each of the following beyond

a reasonable doubt:

First: that the defendant under consideration intended to commit the substantive crime under consideration; and

Second: that the defendant under consideration committed an act constituting a substantial step towards the commission of that crime which strongly corroborates the criminal intent of the defendant under consideration. Count 1

18 U.S.C. § 2339B(a)(1)

(Conspiracy to Provide Material Support and Resources to a Designated Foreign 

Terrorist Organization)

Each of the defendants is charged in Count 1 with the crime of conspiracy to

provide material support and resources to a Designated Foreign Terrorist Organization, in violation of Title 18, United States Code, Section 2339B(a)(1). In pertinent part, Count 1 reads as follows:

Beginning from on or about October 8, 1997, and continuing until the date

of the Indictment, in the Dallas Division of the Northern District of Texas and

elsewhere, the defendants Holy Land Foundation for Relief and Development 

(HLF), Shukri Abu Baker, Mohammad El-Mezain, Ghassan Elashi, Haitham

Maghawri, Akram Mishal, Mufid Abdulqader and Abdulrahman Odeh, and others known and unknown to the Grand Jury, knowingly conspired to provide material support and resources, as those terms are defined in Title 18, United States 

Code, Section 2339A(b), to wit, currency and monetary instruments, to

HAMAS, a designated Foreign Terrorist Organization, in violation of Title 18, United States Code, Section 2339B(a)(1).
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Title 18, United States Code, Section 2339B, provides, in relevant part, Whoever knowingly provides material support or resources to a foreign terrorist

organization, or attempts or conspires to do so is guilty of a crime. To find a defendant guilty of the crime charged in this count, you must find

that the government has proven each of the following elements beyond a reasonable doubt:

First: that two or more persons agreed to provide material support or resources to a foreign terrorist organization, in this case, Hamas;

Second: that the defendant under consideration knowingly became a member of the conspiracy with the intent to further its unlawful purpose;

Third: that one of the conspirators knowingly committed at least one overt

act for the purpose of furthering the conspiracy charged in Count 1;

Fourth: that the charged conspiracy existed on or after October 8, 1997, the

date that Hamas was designated a Foreign Terrorist Organization, and that the

defendant under consideration was a member of the conspiracy on or after that

date; and

Fifth: that this court has jurisdiction over the offense. The term material support or resources means, for purposes of this case, currency or monetary instruments. The term foreign terrorist organization has a particular meaning under this

statute. For an organization to qualify to be a foreign terrorist organization, it

must have been designated as such by the Secretary of State through a process

established by law. I instruct you that Hamas was so designated by the Secretary

of State on October 8, 1997. The second element requires you to find that when a defendant joined the

conspiracy to provide material support or resources to a designated terrorist organization, he did so knowingly. To do so, you must find beyond a reasonable

doubt that (1) the defendant under consideration agreed to provide material support or resources to Hamas, and (2) the defendant under consideration either

knew that Hamas was designated by the United States government as a foreign

terrorist organization, or he knew the organization has engaged in or engages in

terrorist activity. Title 18, United States Code, Section 2339B(d)(1), provides that the court

has jurisdiction over the crime alleged in Count 1 if you find that any of the following applies to the defendant under consideration: (1) he is a national of the

United States or an alien lawfully admitted for permanent residence in the United 

States; (2) he is a stateless person whose habitual residence is in the United

States; (3) after the conduct required for the offense occurred, he was brought

into or found in the United States, even if the conduct required for the offense

occurred outside the United States; (4) the offense occurred in whole or in part

within the United States; (5) the offense occurred in or affected interstate or foreign commerce; or (6) he aided and abetted or conspired with another defendant

over whom jurisdiction exists as a consequence of one of the previous five jurisdictional grants. The term national of the United States means (A) a citizen of the United

States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.
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Interstate commerce means commerce or travel between one state, territory

or possession of the United States and another state, territory or possession of the

United States, including the District of Columbia. Commerce includes travel, trade, transportation and communication. Foreign commerce means commerce or travel between any part of the

United States, including its territorial waters, and any other country, including its

territorial waters. Commerce includes travel, trade, transportation and communication. Counts 2 through 10

18 U.S.C. § 2339B(a)(1)

(Providing Material Support or Resources to a Designated Foreign Terrorist 

Organization)

Each of the defendants is charged in these counts with violating Title 18, United States Code, Section 2339B. That statute provides, in relevant part, Whoever knowingly provides material support or resources to a foreign terrorist

organization, or attempts or conspires to do so is guilty of a crime. To satisfy the

requirement that the provision of material support or resources be made knowingly, a person must have knowledge that the organization is a designated terrorist organization . . . or that the organization has engaged or engages in terrorism.While Count 1 charged each defendant with conspiring, i.e., agreeing, to

provide material support or resources to a foreign terrorist organization namely,

Hamas Counts 2 through 10 charge each of the defendants with actually doing

so. In other words, these counts of the Indictment charge the substantive crimes

which the defendants are charged in Count 1 to have conspired, or agreed, to

commit. Counts 2 through 10 of the Indictment read, in relevant part, as follows:

On or about the dates set forth below, for each count below, in the Dallas

Division of the Northern District of Texas and elsewhere, the defendants HLF, Shukri Abu Baker, Mohammad El-Mezain, Ghassan Elashi, Haitham Maghawri, 

Akram Mishal, Mufid Abdulqader and Abdulrahman Odeh, aided and abetted by 

each other and others known and unknown to the Grand Jury, did knowingly 

provide and attempt to provide material support and resources, as those terms

are defined in Title 18, United States Code, Section 2339A(b), to wit, currency

and monetary instruments, to HAMAS, a designated Foreign Terrorist Organization, by issuing and causing to be issued wire transfers in the amounts indicated, from the defendant HLF bank accounts in the Northern District of Texas, to the

following organizations, which operated on behalf of, or under the control of, HAMAS:

Count Date Amount Organization

2 8/18/98 $11,962 Ramallah Zakat Committee

3 8/21/98 $24,211 Islamic Charity Society of Hebron

4 12/31/98 $8,389 Jenin Zakat Committee

5 5/21/99 $12,115 Ramallah Zakat Committee

6 10/13/99 $25,000 Islamic Charity Society of Hebron
United States v. Holy Land Foundation: Jury Instructions

14

7 12/10/99 $10,152 Jenin Zakat Committee

8 4/11/00 $10,711 Nablus Zakat Committee

9 4/11/00 $7,417 Qalqilia Zakat Committee

10 1/17/01 $16,674 Nablus Zakat Committee

To find a defendant guilty of the crimes charged in Counts 2 through 10, you

must find that the government has proven each of the following elements beyond

a reasonable doubt:

First: that the defendant under consideration knowingly provided, or attempted to provide, the material support alleged in the count under consideration 

to Hamas through the entity listed in that count;

Second: that the defendant under consideration either knew that Hamas was

designated as a foreign terrorist organization, or he knew that Hamas has engaged in, or engages in, terrorist activity; and

Third: that the court has jurisdiction over the crime charged in the count

under consideration. You must decide whether the government has proven all of these elements

for each of the nine counts listed in this section. Each count, and the evidence

pertaining to it, should be considered separately. The fact that you may find one

or more of the defendants guilty or not guilty of any of the counts should not control your verdict as to any other count or any other defendant. You should interpret the terms attempt and knowingly in accordance

with the definitions of those terms previously provided in these instructions. You may find that a defendant under consideration provided material support

to Hamas if you find that the entity to which the defendant provided the support 

was operating under Hamas s direction or control or if it was organizing, managing, supervising, or otherwise directing the operation of Hamas s personnel or

resources. Title 18, United States Code, Section 2339B(d)(1), provides that the court

has jurisdiction over the crimes alleged in Counts 2 10 if you find that any of the

following applies to the defendant under consideration: (1) he is a national of the

United States or an alien lawfully admitted for permanent residence in the United

States; (2) he is a stateless person whose habitual residence is in the United

States; (3) after the conduct required for the offense occurred, he was brought

into or found in the United States, even if the conduct required for the offense

occurred outside the United States; (4) the offense occurred in whole or in part 

within the United States; (5) the offense occurred in or affected interstate or foreign commerce; or (6) he aided and abetted or conspired with another defendant

over whom jurisdiction exists as a consequence of one of the previous five jurisdictional grants. The term national of the United States means (A) a citizen of the United

States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States. Interstate commerce means commerce or travel between one state, territory

or possession of the United States and another state, territory or possession of the

United States, including the District of Columbia. Commerce includes travel, trade, transportation and communication.
United States v. Holy Land Foundation: Jury Instructions

15

Foreign commerce means commerce or travel between any part of the

United States, including its territorial waters, and any other country, including its

territorial waters. Commerce includes travel, trade, transportation and communication. A conspirator is responsible for crimes committed by other conspirators if the

conspirator was a member of the conspiracy when the crime was committed and

if the crime was committed in furtherance of, or as a foreseeable consequence of, the conspiracy. Therefore, if you have first found a defendant under consideration guilty of the conspiracy charged in Count 1, and if you find beyond a reasonable doubt that during the time that defendant was a member of that conspiracy, other members of that conspiracy committed the crimes in Counts 2 through

10 in furtherance of, or as a foreseeable consequence of, that conspiracy, then

you may find the defendant under consideration guilty of the crimes charged in

Counts 2 through 10, even though that defendant may not have participated in

any of the acts which constitute the crimes charged in Counts 2 through 10. Count 11

50 U.S.C. §§ 1701 1706

(Conspiracy to Provide Funds, Goods and Services to a Specially Designated 

Terrorist)

Each of the defendants is charged in Count 11 with the offense of conspiracy

to provide funds, goods and services to a Specially Designated Terrorist, in violation of Title 50, United States Code, Sections 1701 through 1706. In pertinent 

part, Count 11 reads as follows:

Beginning from on or about January 25, 1995, and continuing until the date 

of the Indictment, in the Dallas Division of the Northern District of Texas and

elsewhere, the defendants HLF, Shukri Abu Baker, Mohammad El-Mezain, 

Ghassan Elashi, Haitham Maghawri, Akram Mishal, Mufid Abdulqader and Abdulrahman Odeh, and others known and unknown to the Grand Jury, knowingly

and willfully conspired, confederated and agreed to violate Executive Order

12947, by contributing funds, goods and services to, and for the benefit of, a

Specially Designated Terrorist, namely HAMAS. Title 50, United States Code, Section 1705, makes it a crime for an individual or corporation to willfully violate or attempt to violate an executive order. That

statute also makes it a crime for an officer, director, or agent of a corporation to

knowingly participate in a willful violation of an executive order. On January 23, 1995, pursuant to the authorities vested in the President by

the International Emergency Economic Powers Act (IEEPA), President William 

J. Clinton issued Executive Order 12947 finding grave acts of violence committed by foreign terrorists that disrupt the Middle East peace process constitute an

unusual and extraordinary threat to the national security, foreign policy, and

economy of the United States, and hereby declare a national emergency to deal

with that threat. Executive Order 12947 further specified that any transaction or dealing by

United States persons or within the United States [with] . . . the persons designated in or pursuant to this order is prohibited, including the making or receiving of
United States v. Holy Land Foundation: Jury Instructions

16

any contribution of funds, goods, or services to or for the benefit of such persons. This order identified Hamas as a specially designated terrorist. Section 1705(b) (IEEPA) of Title 50, United States Code, provides,

whoever willfully violates any license, order or regulation issued under this

title [is guilty of a crime.]

50 U.S.C. §§ 1701, 1702, 1705; Executive Order 12947. Pursuant to Executive Order 12947, the Secretary of the Treasury promulgated regulations to give effect to the President s Executive Order. Those regulations include the following referenced regulations. Section 595.204 of Title 31, Code of Federal Regulations, provides, except

as otherwise authorized, no U.S. person may deal in property or interests in property of a specially designated terrorist, including the making or receiving of any

contribution of funds, goods, or services to or for the benefit of a specially designated terrorist. Section 595.205 of Title 31, Code of Federal Regulations, provides, any transaction for the purpose of, or which has the effect of, evading or

avoiding, or which facilitates the evasion or avoidance of, any of the prohibitions 

set forth in this part, is hereby prohibited. Any attempt to violate the prohibitions

set forth in this part, is hereby prohibited. Any conspiracy formed for the purpose 

of engaging in a transaction prohibited by this part is hereby prohibited. Section 595.408 of Title 31, Code of Federal Regulations, provides,

(a) Unless otherwise specifically authorized by the Office of Foreign Assets

Control by or pursuant to this part, no charitable contribution or donation of

funds, goods, services, or technology to relieve human suffering, such as food, 

clothing or medicine, may be made to or for the benefit of a specially designated 

terrorist. For purposes of this part, a contribution or donation is made to or for

the benefit of a specially designated terrorist if made to or in the name of a specially designated terrorist; if made to or in the name of an entity or individual

acting for or on behalf of, or owned or controlled by, a specially designated terrorist; or if made in an attempt to violate, to evade or to avoid the bar on the

provision of contributions or donations to specially designated terrorists. (b) Individuals and organizations who donate or contribute funds, goods, services or technology without knowledge or reason to know that the donation

or contribution is destined to or for the benefit of a specially designated terrorist

shall not be subject to penalties for such donation or contribution. Section 595.701(a) provides that whoever willfully violates any license, order, or regulation issued under the Act is guilty of a crime. To find a defendant guilty of the crime charged in Count 11, you must find

that the government has proven each of the following elements beyond a reasonable doubt:

First: that two or more persons agreed to violate Executive Order 12947 by

contributing funds, goods, and services to, or for the benefit of, a Specially Designated Terrorist, namely, Hamas;

Second: that the defendant under consideration knowingly and willfully became a member of the conspiracy with the intent to further its unlawful purpose;

Third: that one or more of the conspirators knowingly committed at least

one overt act for the purpose of furthering the conspiracy charged in Count 11;

and
United States v. Holy Land Foundation: Jury Instructions

17

Fourth: that the charged conspiracy existed on or after January 23, 1995

the date Hamas was designated a Specially Designated Terrorist and that the

defendant under consideration was a member of the conspiracy on or after that

date. You may find that two or more people agreed to violate Executive Order

12947 if you find that two or more individuals agreed to contribute funds, goods

or services to or for the benefit of Hamas in violation of that order. You should interpret the terms attempt, knowingly, and willfully in

accordance with the definitions of those terms previously provided in these instructions. Counts 12 through 21

50 U.S.C. §§ 1701 1706

(Providing Funds, Goods and Services to a Specially Designated Terrorist)

Each of the defendants is charged in Counts 12 through 21 with the crime of

providing funds, goods and services to a Specially Designated Terrorist, in violation of Title 50, United States Code, Sections 1701 through 1706. While Count 

11 charges each defendant with conspiring, i.e., agreeing, to provide funds, goods 

and services to a Specially Designated Terrorist namely, Hamas Counts 12

through 21 charge each of the defendants with actually doing so. In other words, these counts of the Indictment charge the substantive crimes which the defendants are charged in Count 11 to have conspired, or agreed, to commit. In pertinent part, Counts 12 through 21 read as follows:

On or about the dates listed below, for each count below, in the Dallas Division of the Northern District of Texas and elsewhere, the defendants HLF, Shukri Abu Baker, Mohammad El-Mezain, Ghassan Elashi, Haitham Maghawri, 

Akram Mishal, Mufid Abdulqader and Abdulrahman Odeh, aided and abetted by 

each other and others known and unknown to the Grand Jury, willfully contributed funds, goods and services to, or for the benefit of, a Specially Designated

Terrorist, namely HAMAS, by issuing and causing to be issued wire transfers in

the amounts indicated, from the HLF bank accounts in the Northern District of

Texas, to the following organizations, which operated on behalf of, or under the

control of, HAMAS:

Count Date Amount Organization

12 10/20/98 $12,342 Ramallah Zakat Committee

13 12/31/98 $50,000 Islamic Charity Society of Hebron

14 12/31/98 $11,138 Nablus Zakat Committee

15 6/3/99 $8,408 Jenin Zakat Committee

16 9/23/99 $12,308 Ramallah Zakat Committee

17 9/23/99 $36,066 Islamic Charity Society of Hebron

18 12/13/99 $8,049 Tolkarem Zakat Committee

19 12/14/99 $12,570 Nablus Zakat Committee

20 1/17/01 $10,494 Qalqilia Zakat Committee

21 6/11/01 $6,225 Qalqilia Zakat Committee
United States v. Holy Land Foundation: Jury Instructions

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Title 50, United States Code, Section 1705, makes it a crime for an individual or corporation to willfully violate, or attempt to violate, an executive order. That statute also makes it a crime for an officer, director, or agent of a corporation to knowingly participate in a willful violation of an executive order. On January 23, 1995, pursuant to the authorities vested in the President by

the International Emergency Economic Powers Act (IEEPA), President William 

J. Clinton issued Executive Order 12947 finding grave acts of violence committed by foreign terrorists that disrupt the Middle East peace process constitute an

unusual and extraordinary threat to the national security, foreign policy, and

economy of the United States, and hereby declare a national emergency to deal

with that threat. Executive Order 12947 further specified that any transaction or dealing by

United States persons or within the United States [with] . . . the persons designated in or pursuant to this order is prohibited, including the making or receiving of

any contribution of funds, goods, or services to or for the benefit of such persons. This order identified Hamas as a specially designated terrorist. Section 1705(b) (IEEPA) of Title 50, United States Code, provides,

whoever willfully violates any license, order or regulation issued under this

title [is guilty of a crime.]

50 U.S.C. §§ 1701, 1702, 1705; Executive Order 12947. Pursuant to Executive Order 12947, the Secretary of the Treasury promulgated regulations to give effect to the President s Executive Order. Those regulations include the following referenced regulations. Section 595.204 of Title 31, Code of Federal Regulations, provides, except

as otherwise authorized, no U.S. person may deal in property or interests in property of a specially designated terrorist, including the making or receiving of any

contribution of funds, goods, or services to or for the benefit of a specially designated terrorist. Section 595.205 of Title 31, Code of Federal Regulations, provides, any

transaction for the purpose of, or which has the effect of, evading or avoiding, or

which facilitates the evasion or avoidance of, any of the prohibitions set forth in

this part, is hereby prohibited. Any attempt to violate the prohibitions set forth in

this part, is hereby prohibited. Any conspiracy formed for the purpose of engaging in a transaction prohibited by this part is hereby prohibited. Section 595.408 of Title 31, Code of Federal Regulations, provides,

(a) Unless otherwise specifically authorized by the Office of Foreign Assets

Control by or pursuant to this part, no charitable contribution or donation of

funds, goods, services, or technology to relieve human suffering, such as food, 

clothing or medicine, may be made to or for the benefit of a specially designated 

terrorist. For purposes of this part, a contribution or donation is made to or for

the benefit of a specially designated terrorist if made to or in the name of a specially designated terrorist; if made to or in the name of an entity or individual

acting for or on behalf of, or owned or controlled by, a specially designated terrorist; or if made in an attempt to violate, to evade or to avoid the bar on the

provision of contributions or donations to specially designated terrorists. (b) Individuals and organizations who donate or contribute funds, goods, services or technology without knowledge or reason to know that the donation
United States v. Holy Land Foundation: Jury Instructions

19

or contribution is destined to or for the benefit of a specially designated terrorist

shall not be subject to penalties for such donation or contribution. Section 595.701(a) provides that whoever willfully violates any license, order, or regulation issued under the Act is guilty of a crime. To find a defendant guilty of the crimes charged in Counts 12 through 21, you must find that the government has proven each of the following elements

beyond a reasonable doubt:

First: that the defendant under consideration himself, or by aiding and abetting another defendant or by being aided or abetted by another defendant, contributed or attempted to contribute funds, goods, or services to or for the benefit

of Hamas, a Specially Designated Terrorist, by providing the support listed in

the count under consideration to the entity identified in that count; and

Second: that the defendant under consideration willfully contributed, or attempted to contribute, the support listed in the count under consideration to the

entity identified in that count or that the defendant in question was an officer, director, 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. You must decide whether the government has proven both of these elements

for each of the ten counts listed in this section. Each count, and the evidence pertaining to it, should be considered separately. The fact that you may find one or

more of the defendants guilty or not guilty of any of the counts should not control

your verdict as to any other count or any other defendant. I instruct you that Hamas has been a Specially Designated Terrorist since

January 23, 1995. Accordingly, you may find that a defendant under consideration contributed funds, goods, or services to or for the benefit of a Specially Designated Terrorist if you find that the entity to which that defendant made the contribution was operating under Hamas s direction or control or if it was organizing, managing, supervising, or otherwise directing the operation of Hamas s personnel or resources. You should interpret the terms aiding and abetting, attempt, knowingly

and willfully in accordance with the definitions of those terms previously provided in these instructions. A conspirator is responsible for crimes committed by other conspirators if the

conspirator was a member of the conspiracy when the crime was committed and

if the crime was committed in furtherance of, or as a foreseeable consequence of, the conspiracy. Therefore, if you have first found a defendant under consideration guilty of the conspiracy charged in Count 11, and if you find beyond a reasonable doubt that during the time that defendant was a member of the conspiracy, other members of the conspiracy committed the crimes in Counts 12 through

21 in furtherance of, or as a foreseeable consequence of, that conspiracy, then

you may find the defendant under consideration guilty of the crimes charged in

Counts 12 through 21, even though that defendant may not have participated in

any of the acts which constitute the crimes charged in Counts 12 through 21.
United States v. Holy Land Foundation: Jury Instructions

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Count 22

18 U.S.C. § 1956(h)

(Conspiracy to Commit Money Laundering)

Each of the defendants is charged in Count 22 with the offense of conspiracy

to commit money laundering, in violation of Title 18, United States Code, Section 1956(h). In pertinent part, Count 22 reads as follows:

Beginning from on or about January 25, 1995, and continuing until the date

of the Indictment, in the Dallas Division of the Northern District of Texas and

elsewhere, the defendants HLF, Shukri Abu Baker, Mohammad El-Mezain, 

Ghassan Elashi, Haitham Maghawri, Akram Mishal, Mufid Abdulqader and Abdulrahman Odeh and others known and unknown to the Grand Jury, in offenses

involving interstate and foreign commerce, transmitted and transferred, and attempted to transmit and transfer, funds from a place within the United States, namely the Northern District of Texas, to places outside the United States, including the West Bank and Gaza, with the intent to promote the carrying on of a

specified unlawful activity, to wit, by contributing funds, goods and services to, or for the benefit of, a Specially Designated Terrorist, namely HAMAS. Title 18, United States Code, Section 1956, prohibits transporting, transmitting or transferring, or attempting to transport, transmit or transfer,

a monetary instrument or funds from a place in the United States to or through a

place outside the United States or to a place in the United States from or through 

a place outside the United States

(A) with the intent to promote the carrying on of specified unlawful activity. To find a defendant guilty of the offense charged in Count 22, you must find

that the government has proven each of the following elements beyond a reasonable doubt:

First: that two or more persons agreed to commit the crime of money laundering;

Second: that the defendant under consideration joined in it knowingly and 

willfully, that is, with the intent to promote the carrying on of a specified unlawful activity by willfully contributing funds, goods, or services to, or for the benefit of, a Specially Designated Terrorist, namely, Hamas; and

Third: that one or more of the conspirators knowingly committed at least

one overt act for the purpose of furthering the conspiracy charged in Count 22. You may find that there was an agreement to violate Title 18, United States

Code, Section 1956, if you find that two or more people agreed (1) to transport,

transmit or transfer, or to attempt to transport, transmit or transfer, (2) funds in

the United States to a place outside the United States or funds outside the United

States to a place inside the United States, (3) with the intent of contributing

funds, goods, or services to or for the benefit of a Specially Designated Terrorist, namely, Hamas. You should interpret the terms attempt, knowingly and willfully in accordance with the definitions of those terms previously provided in these instructions.
United States v. Holy Land Foundation: Jury Instructions

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Counts 23 through 32

18 U.S.C. § 1956(a)(2)(A)

(Money Laundering)

Each of the defendants is charged in Counts 23 through 32 with the offense

of money laundering, in violation of Title 18, United States Code, Section

1956(a)(2)(A). While Count 22 charges each defendant with conspiring, i.e., agreeing, to commit money laundering, Counts 23 through 32 charge each of the

defendants with actually doing so. In other words, these counts of the Indictment

charge the substantive crimes which the defendants are charged in Count 22 to

have conspired, or agreed, to commit. In pertinent part, Counts 23 through 32 read as follows:

On or about each of the dates set forth below, for each count below, in the

Dallas Division of the Northern District of Texas and elsewhere, the defendants

HLF, Shukri Abu Baker, Mohammad El-Mezain, Ghassan Elashi, Haitham 

Maghawri, Akram Mishal, Mufid Abdulqader and Abdulrahman Odeh, aided

and abetted by each other and others known and unknown to the Grand Jury, in

offenses involving interstate and foreign commerce, transmitted and transferred, 

and attempted to transmit and transfer, funds in the amounts indicated, from a

place within the United States, namely the Northern District of Texas, to places

outside the United States, including the West Bank and Gaza, with the intent to

promote the carrying on of a specified unlawful activity, to wit, by willfully contributing funds, goods and services to, or for the benefit of, a Specially Designated Terrorist, namely HAMAS, in violation of Title 50, United States Code, Sections 1701 through 1706 (IEEPA), and punishable under Section 206 of 

IEEPA (also known as Title 50, United States Code, Section 1705(b)):

Count Date Amount Organization

23 10/20/98 $12,342 Ramallah Zakat Committee

24 12/31/98 $50,000 Islamic Charity Society of Hebron

25 12/31/98 $11,138 Nablus Zakat Committee

26 6/3/99 $8,408 Jenin Zakat Committee

27 9/23/99 $12,308 Ramallah Zakat Committee

28 9/23/99 $36,066 Islamic Charity Society of Hebron

29 12/13/99 $8,049 Tolkarem Zakat Committee

30 12/14/99 $12,570 Nablus Zakat Committee

31 1/17/01 $10,494 Qalqilia Zakat Committee

32 6/11/01 $6,225 Qalqilia Zakat Committee

Title 18, United States Code, Section 1956, prohibits transporting, transmitting or transferring, or attempting to transport, transmit or transfer,

a monetary instrument or funds from a place in the United States to or through a

place outside the United States or to a place in the United States from or through 

a place outside the United States

(A) with the intent to promote the carrying on of specified unlawful activity.
United States v. Holy Land Foundation: Jury Instructions

22

To find a defendant guilty of the crimes charged in Counts 23 through 32, you must find that the government has proven each of the following elements

beyond a reasonable doubt:

First: that the defendant under consideration transported, transmitted or

transferred, or attempted to transport, transmit or transfer, a monetary instrument 

or funds in the United States to a place outside the United States or funds outside the United States to a place inside the United States; and

Second: that the action described in the first element was committed with

the intent to promote the carrying on of the specified unlawful activity. You must decide whether the government has proven both of these elements

for each of the ten counts listed in this section. Each count, and the evidence pertaining to it, should be considered separately. The fact that you may find one or

more of the defendants guilty or not guilty of any of the counts should not control

your verdict as to any other count or any other defendant. The terms transport, transmit and transfer should be accorded their ordinary, everyday meaning. The government need not prove that a defendant

physically carried the funds or monetary instruments to prove that a defendant 

under consideration was responsible for transporting, transmitting or transferring

them. All that is required is that the defendant under consideration caused the

funds or monetary instruments to be transported, transmitted or transferred. The term monetary instruments means (1) coin or currency of the United

States or of any other country, travelers checks, personal checks, bank checks, and money orders, or (2) investment securities or negotiable instruments, in bearer form or otherwise, in such form that title thereto passes upon delivery. You should interpret the term attempt in accordance with the definition of

that term previously provided in these instructions. You may find that a defendant under consideration acted with the intent to

promote the carrying on of specified unlawful activity if you find that he contributed or attempted to contribute funds, goods, or services to or for the benefit of

a Specially Designated Terrorist. I instruct you that Hamas has been a Specially

Designated Terrorist since January 23, 1995. Accordingly, you may find that a

defendant contributed funds, goods, or services to or for the benefit of a Specially 

Designated Terrorist if you find that the entity to which the defendant made the

contribution was operating under Hamas s direction or control or if it was organizing, managing, supervising, or otherwise directing the operation of Hamas s

personnel or resources. A conspirator is responsible for crimes committed by other conspirators if the

conspirator was a member of the conspiracy when the crime was committed and

if the crime was committed in furtherance of, or as a foreseeable consequence of, the conspiracy. Therefore, if you have first found a defendant under consideration guilty of the conspiracy charged in Count 22, and if you find beyond a reasonable doubt that during the time the defendant was a member of that conspiracy, other members of that conspiracy committed the crimes in Counts 23 through

32 in furtherance of or as a foreseeable consequence of that conspiracy, then you

may find the defendant under consideration guilty of the crimes charged in
United States v. Holy Land Foundation: Jury Instructions

23

Counts 23 through 32, even though that defendant may not have participated in

any of the acts which constitute the crimes charged in Counts 23 through 32. Count 33

18 U.S.C. § 371

(Conspiracy to Impede and Impair the Internal Revenue Service and to File 

False Return of Organization Exempt from Income Tax)

The defendants Shukri Abu Baker and Ghassan Elashi are charged in Count

33 with the offense of conspiracy to impede and impair the Internal Revenue

Service by filing a false return for an Organization Exempt from Income Tax, in

violation of Title 18, United States Code, Section 371. That statute makes it illegal for two or more persons to conspire to commit any offense against the

United States, or to defraud the United States, or any agency thereof in any manner or for any purpose. In pertinent part, Count 33 reads as follows:

In or around and between January 1990 and continuing until the date of the

Indictment, in the Dallas Division of the Northern District of Texas and elsewhere, the defendants Shukri Abu Baker and Ghassan Elashi, and others known

and unknown to the Grand Jury, did knowingly and willfully combine, conspire, confederate and agree together with themselves and others

a. to defraud the United States of America and the Internal Revenue

Service ( IRS ), an agency thereof, by impeding, impairing, defeating and

obstructing the lawful governmental functions of the IRS in the ascertainment, evaluation, assessment and collection of corporate income taxes, in

violation of Title 18, United States Code, Section 371; and

b. to willfully make and subscribe, and aid and assist in the preparation

and presentation of, United States Returns of Organization Exempt from Income Tax, Form 990, which were verified by written declarations that they

were made under the penalties of perjury and were filed with the IRS, which returns they did not believe to be true and correct as to every material 

matter in that the returns reported payments to Program Services when in

fact the payments were going to HAMAS, in violation of Title 26, United 

States Code, Section 7206(1). To establish the violation of Title 18, United States Code, Section 371, alleged in Count 33, the government must have proven each of the following elements beyond a reasonable doubt:

First: that two or more persons agreed to defraud the Internal Revenue Service or to willfully file a false tax return, as charged in Count 33;

Second: that the defendant under consideration knowingly and willfully became a member of the conspiracy with the intent to further its unlawful purpose; 

and

Third: that one of the conspirators knowingly committed at least one overt

act for the purpose of furthering the conspiracy charged in Count 33. You should interpret the terms knowingly and willfully in accordance

with the definitions of those terms previously provided in these instructions.
United States v. Holy Land Foundation: Jury Instructions

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Counts 34 through 36

26 U.S.C. § 7206(1)

(Filing a False Tax Return)

The defendant Shukri Abu Baker is charged in Count 34 and the defendant

Ghassan Elashi is charged in Counts 35 and 36 with the offense of filing a false

tax return in violation of Title 26, United States Code, Section 7206(1). That statute makes it a crime for a person to willfully make or subscribe any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe

to be true and correct as to every material matter. While Count 33 charges Shukri Abu Baker and Ghassan Elashi with the

crime of conspiracy, i.e., an agreement, to defraud the Internal Revenue Service

or to impede and impair the Internal Revenue Service by willfully filing a false

return for an Organization Exempt from Income Tax, Counts 34 through 36

charge those defendants with actually filing a false tax return. In other words, these counts of the Indictment charge the substantive crimes which these defendants are charged in Count 33 to have conspired, or agreed, to commit. In pertinent part, Counts 34 through 36 read as follows:

On or about the dates specified below, in the Dallas Division of the Northern District of Texas and elsewhere, the defendants as listed below, did knowingly and willfully make and subscribe United States Returns of Organizations 

Exempt from Income Tax, Form 990, for the HLF, for the years listed below, which were verified by written declarations that they were made under the penalties of perjury and were filed with the Internal Revenue Service, which informational tax returns each defendant did not believe to be true and correct as

to every material matter in that the returns reported payments to Program Services on Line 13 of said returns, whereas each defendant then and there well

knew and believed the payments were not used for program services as required

by their 501(c)(3) status:

Count Year Date Filed Defendant

34 1998 3/11/99 Shukri Abu Baker

35 1999 5/8/00 Ghassan Elashi

36 2000 8/7/01 Ghassan Elashi

For you to find a defendant guilty of the crimes charged in Counts 34 36, 

you must be convinced that the government has proven each of the following

beyond a reasonable doubt:

First: that the defendant under consideration signed an income tax return

that contained a written declaration that it was made under penalties of perjury;

Second: that in this return the defendant under consideration falsely stated

that the payments on Line 13 of the return were for Program Services when in

fact the payments were going to Hamas;

Third: that the defendant under consideration knew the statement was false;

Fourth: that the false statement was material; and

Fifth: that the defendant under consideration made the statement willfully, that is, with intent to violate a known legal duty.
United States v. Holy Land Foundation: Jury Instructions

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You must decide whether the government has proven all of these elements

for each of the charges listed in these counts. Each count, and the evidence pertaining to it, should be considered separately. The fact that you may find one of

the defendants guilty or not guilty of the crimes charged in any of the counts

should not control your verdict as to any other count or as to the other defendant. You may find that a defendant under consideration falsely stated that the

amounts listed on Line 13 were used for program services if you find that the

funds were provided to Hamas. You may find that a given defendant knew the statement was false if the

statement was made knowingly, as that term has been previously defined in

these instructions. A statement is material if it has a natural tendency to influence, or is capable of influencing, the Internal Revenue Service in investigating or auditing a tax

return or in verifying or monitoring the reporting of income or expenditures by a

taxpayer. It is not necessary, however, that the Internal Revenue Service actually

be influenced or deceived. To prove a violation of 26 U.S.C. Section 7206(1), the government does not

have to show that there was a tax due and owing for the year(s) in issue. Nor

need it be shown that the government suffered a monetary loss as a result of the

return in issue. Jury Deliberations

To reach a verdict, all of you must agree. That is, with respect to the charges

against each defendant in each count of the indictment, your verdict must be unanimous. Your deliberations will be secret. You will never have to explain your

verdict to anyone. It is your duty as jurors to consult with one another and to deliberate in an effort to reach agreement if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your 

deliberations, do not hesitate to re-examine your own views and to change your

opinion if you are convinced it is erroneous. On the other hand, do not surrender

your honest conviction as to the weight or effect of the evidence solely because 

of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.Some of you chose to take notes during this case. Your notes should be used

only as memory aids. You should not give your notes precedence over your independent recollection of the evidence. If you did not take notes, you should rely

upon your own independent recollection of the proceedings and you should not

be unduly influenced by the notes of other jurors. Notes are not entitled to any

greater weight than the memory or impression of each juror as to what the testimony may have been. Whether you took notes or not, each of you must form and 

express your own opinion as to the facts of the case. Remember, at all times, that you are not partisans. You are judges judges of

the facts. Your sole interest is to seek the truth from the evidence in this case.
United States v. Holy Land Foundation: Jury Instructions

26

As soon as I finish giving these instructions, you will retire to the jury room. In a few minutes, I will send to you the original and copies of this charge, copies 

of the indictment, the exhibits that have been admitted into evidence, and photographs of the witnesses who testified at this trial. Do not begin your deliberations 

until you have received all of these materials. After you have received from the

court the original and copies of this charge, copies of the indictment, the exhibits

admitted into evidence, and photographs of the witnesses who testified in this

trial, you should select one of your number to act as your foreperson. He or she

will preside over your deliberations and will be your spokesperson here in court. During your deliberations you will set your own work schedule, deciding for

yourselves when and how frequently you wish to recess and for how long. A verdict form has been prepared for your convenience. When you have

reached unanimous agreement as to your verdict on each count in the indictment,

have your foreperson fill in the verdict form, date and sign it, and contact the

court security officer. Keep the verdict form and do not reveal your verdict until

you are returned to the courtroom and instructed to do so by the court. If during your deliberations you wish to communicate with the court, your

message or question must be written down and signed by your foreperson. Pass

the note to the court security officer, who will bring it to me. I will then respond

as promptly as possible, either in writing or by having you return to the courtroom so that I can address you orally. I caution you, however, that any note you

might send must never state or specify your numerical division at that time.