### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 09-10560

UNITED STATES OF AMERICA, Plaintiff - Appellee
v. MOHAMMAD EL-MEZAIN; GHASSAN ELASHI; SHUKRI ABU BAKER; MUFID ABDULQADER; ABDULRAHMAN ODEH; HOLY LAND FOUNDATION FOR RELIEF AND DEVELOPMENT, also known as HLF,

Defendants - Appellants

_________________ Consolidated with 08-10664

_________________ UNITED STATES OF AMERICA, Plaintiff - Appellee

v. SHUKRI ABU BAKER; MOHAMMAD EL-MEZAIN; GHASSAN ELASHI; MUFID ABDULQADER; ABULRAHMAN ODEH, Defendants - Appellants

_________________ Consolidated with 08-10774

_________________ U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Decem ber 7 , 20 11 Lyle W . Cayce Clerk Case: 09-10560 Document: 00511687541 Page: 1 Date Filed: 12/07/2011No. 09-10560

UNITED STATES OF AMERICA, Plaintiff - Appellee

v. MOHAMMAD EL-MEZAIN, Defendant - Appellant

_________________ Consolidated with 10-10590

_________________ UNITED STATES OF AMERICA, Plaintiff - Appellee - CrossAppellant

v. HOLY LAND FOUNDATION FOR RELIEF AND DEVELOPMENT, also known as HLF, Defendant - Appellant - Cross-Appellee

_________________ Consolidated with 10-10586

_________________ UNITED STATES OF AMERICA,
Plaintiff

v. SHUKRI ABU BAKER,

2 Case: 09-10560 Document: 00511687541 Page: 2 Date Filed: 12/07/2011No. 09-10560 Defendant NANCY HOLLANDER, Appellant

Appeals from the United States District Court for the Northern District of Texas

Before KING, GARZA, and GRAVES, Circuit Judges. KING, Circuit Judge: In this consolidated case, we address the appeals of five indivi d u a l s and

one corporate defendant convicted of conspiracy a n d substantive offenses for providing material aid and support to a designated terrorist organization. The terrorist organization at issue is Hamas, which in 1995 was named a Specially Designated Terrorist by Presidential Executive Order pursuant to authority granted by the International Emergency Economic Powers Act, 50 U.S.C. § 1701 et seq. Hamas was further des i gn ated as a Foreign Terrorist Organization in 1997, as contemplated by 18 U.S.C. § 233 9B. Although this c a s e i s related to terrorism, it does not involve charges of specific terrorist acts. Instead, it focuses on the defendants’ financial support for terrorism and a terrorist ideology. The def e n d ants were charged with aiding Hamas by raising funds through the corporate entity Holy Land Foundation for Relief and Development, a Texas-based, pro-Palestinian charity that the Government charged was created for the sole purpose of acting as a financing arm for Hamas. Although the charged conspiracy began in 1995 when Hamas

was first designat e d as a terrorist organization, the defendants’ connection to Hamas arose much earlier.

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Established in the late 1980s, the Holy Land Foundation held itself out as the largest Muslim charitable organization in the United States. It raised millions of dollars over the course of its existence t hat were then funneled to Ha m a s t hrough various charitable entities in the West Bank and Gaza. Although these entities performed some legitimat e c haritable functions, they

w e r e actually Hamas social institutions. By supporting such entities, th e defendants facilitated Hamas’s activity by fu r th e ring its popularity among Palestinians and by providing a funding resource. This, in turn, allowed Hamas to concentrate its efforts on violent activity. The trial, which followed an earlier mistrial and lasted approximately six weeks, produced a massive record on appeal. The Government produced voluminous evidence ob t ained from covert surveillance, searches, and testimony showing a web of complex relatio n ships connecting the defendants to Hamas and its various sub-groups. The financial li n k b e t ween the Holy Land Foundation and Hamas was established at the Foundation’s genesis and continued until it was severed by the Government’s intervention in 2001. The defendants raise a host of i s s u es challenging both their convictions and their sentences, including numerous errors that they claim deprived them of a fair trial. While no trial is perfect, this one included, we conclude from our review of the record, briefs, and oral argument, that the defendants were fairly convicted. For the reasons explained below, therefore, we AFFIRM the district court’s judgments of conviction of the individual defendants. We DISMISS the appeal of the Holy Land Foundation for Relief and Development.

4 Case: 09-10560 Document: 00511687541 Page: 4 Date Filed: 12/07/2011No. 09-10560 TABLE OF CONTENTS I. Factual and Procedural Background...................................... ...........................7 I I

. D i s cu s s io n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . 1 6 A

. T e s ti mony of witn e s s e s u s in g p s e u do nym s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6 B

. H e ar s ay evi de nc e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2 1

. Moh a m e d Shorb a gi

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3 2

. D ocu m e nt s s ei z e d f

ro m th e P al estinian Authority....

. . . . . . . . . . . . . . . . . . . 2 7 3

. E lb ar a s s e an d As h q ar docu m e nt s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4 C

. Pre j u dici al evi de nc e un der Rul e 4 0 3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...................... . . . . 4 6 D

. E xp ert an d l ay o p inio n t e stimony........................

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 2 1

. J ohn Mc Bri e n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 2 2

. F B I Age nt s L ar a Burn s and Robert Miranda......................

. . . . . . . . . 5 6 3

. M atth ew Levitt

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 9 4

. Steven Simon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 0 E

. Lett er ro gatory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2 F

. Pro ductio n of th e def e n d ant s ’ intercepted statements.......

. . . . . . . . . . . . . . . . . . . . 6 5 G

. H ar ml e s s an d cu m ul ative error........................ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 7 1

. H ar ml e s s error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 8

a . H L F’ s c o nn e ctio n to H a m a s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 0 b

. H a m a s ’ s c o ntrol of the zakat committ e e s . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 8 2

. C u m ul ative error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 4 H

. Jury ch arge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 4 I. The search of HLF’ s of f ic e s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .....................101 J

. D ef e n d ant E l a shi’ s do ub l e j e o p ar dy i s s u e . . .......................... . . . . . . . . . . . . . . . . . 1 1 1 1

. Ti m e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 3 2

. C o - co n s p ir ator s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 4 3

. S t atutory of

f e n s e s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 5 4

. O vert act s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 7

5 Case: 09-10560 Document: 00511687541 Page: 5 Date Filed: 12/07/2011No. 09-10560 5

. Pl ac e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2 0 K

. D ef e ndant El-Mezain’ s c oll at er al e s to p p el i s s u e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2 1 1

. C oll at er al e s to p p el a s a b ar to the instant conviction................. 1 2 2 2. Collat er al e s to p p el an d th e exclu s io n of evi de nc e . . . . . . . . . . .............132 L

. Mi s tri al an d doub l e j e o p ar dy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...................134 M. Challenge to FISA applicatio n s an d int erc e p t s . . . . . . . . . . . . . . . . . . . . . . . . . . . ........142 1

. D i s clo s ure of FI SA applications and orders...........

. . . . . . . . . . . . . . . . . . . . . 1 4 3 2

. S up p re s sio n of FI SA int erc e p t s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 5 1 N

. S e nt e ncin g
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 5 4 1

. T errori s m a d

j u s t m e nt

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 5 4 2

. Valu e of l aun dere d f un d s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 5 6 O

. Ap p e al s of H L F an d N ancy H oll an der . . . . . . . . . . . . . . . . . . . .............................. . 1 5 8 1

. B ack gro un d

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 5 8 2

. H L F’ s ap p e al

. . . . . . . . . . . . . . . . . . . . ..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6 5 3

. H oll an der’ s ap p e al

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6 9 I I I

. C o nclu s io n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 7 0

6 Case: 09-10560 Document: 00511687541 Page: 6 Date Filed: 12/07/2011No. 09-10560 I. FACTUAL & PROCEDURAL BACKGROUND T h e instant prosecution began with an indictment of the defendants in 2004 that ended in a mistrial in 2007 but with a partial verdict. The defendants

were re-tried and convicted in 2008. The indictment, as superseded, charged the defendants with consp i r a c y t o provide material support to a foreign terrorist organization (i.e., Hamas), in violation of 18 U.S.C. § 2339B(a)(1) (Count 1); providing material support to a foreign terrorist organization, in violation of 18 U.S.C. § 2339B(a)(1) (Counts 2–10); conspiracy to provide funds, goods, and services to a Specially Designated Terrorist (i.e., Hamas), in vio l a t i on of 50 U

. S

. C

. §§ 1701–1706 (Count 11); providing funds, goods, and services to a Specially Designated Terrorist, in violation of 50 U.S.C. §§ 1701–1706 (Counts 1 2 –21); conspiracy to commit money laundering, in violation of 18 U.S. C

. § 1956(h) (Count 22); substan t iv e m o ney laundering, in violation of 18 U.S.C. § 1956(a)(2)(A) (Counts 23–32); forfeiture of assets; and certain tax offenses not relevant to this appeal. The charges arose after many years of widespread surveillance conducted pursuant to the Foreign Intelligence Surve illance Act (“FISA”) of several individuals and of the Holy Land Foundation for Relief and Develo p m e nt (“HLF”). Until it was closed by the Government in 2 0 0 1 , H L F w a s a proPalestinian charitable organization based in Richardson, Texas. Individual defendants Shukri Abu Baker, Ghassan Elashi, and Mohammad El-Mezain served a s o f

f i cers and directors for HLF. Defendant Abdulrahman Odeh managed HLF’s New Jersey office, and Defendant Mufid Abdulqader w a s a speaker and performer who appeared at HLF fundraising events. HLF held itself out to be the largest Muslim charity in the United States, ostensibly with the mission of p r o vi di ng humanitarian assistance to needy Palestinians living in the Israeli-occupied territory of the West Bank and Gaza. The Government charged t h a t in reality HLF’s mission was to act as a

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fundraising arm for Hamas, also known as the Islamic Resistance Movement, and to a s s i s t Hamas’s social wing in support of Hamas’s goal to secure a Palestinian Islamic state in what is now I s r ael. The indictment charged the defendants with assisting Hamas by funnelin g money to certain “zakat” committees located in the West B a nk. Zakat committees are charitable organizations to which practicing Muslims may donate a portion of their income pursuant to their religious beliefs, bu t t h e Government charged that the committees to which the defendants gave money were p a r t o f Hamas’s social network. According to the evidence at trial, which we view in the light most favorable to the verdict, Hamas operates political, military, and social branches to serve its overall goal to destroy Israel. Its charter advocates violent jihad as the only solution for the conflict between Palestinians and Israelis, and it considers it the duty of all Muslims to participate in this objective either through direct a c tion or through financial support. Hamas’s social wing serves this
purpose in multiple ways. It provides social services like education and medical

care to the needy through the operations of schools and hospitals. But it also builds grassroots support for Hamas and its violent act ivi ties through these

same means. The social wing is crucial to Hamas’s success because, through its operation of schools, hospitals, and sport i n g facilities, it helps Hamas win the “hearts and minds” of Palestinians while promoting its anti-Israel agenda and indoctrinating th e p opulace in its ideology. The social wing also supports the families of Hamas prisoners and suicide bombers, thereby providing incentives for bombing, and it launders money for all of Hamas’s activities. Therefore, aid to Hamas’s social wing critically assists Hamas’s go a ls while also freeing resources for Hamas to devote to its military and political activities. The evidence showed that HLF and Hamas were created al o ng similar time lines. In 1987, a Palestinian revolt in Israel, known as the Intifada,

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spurred the founding of Hamas b y S h eikh Ahmed Yassin as a representative organization for Palestine. Hamas considered itself to be the Palestinian branch of the Muslim Brotherhood, a much older Islamic organization cr e ated in the 1920s and to which Yassin belonged

. Af t e r Hamas’s formation, the Muslim Brotherhood directed its world-wide chapters to establish so-called “Pal e s t ine Committees” to support Hamas from abroad. In the United States, Defendants Baker, El-Mezain, and Elashi were members of a Palestine Committee headed by unindicted co-conspirator Mousa Abu Marzook. The Government estab l i s h e d t h at Marzook was the leader of Hamas’s political wing in t h e 1990s. According to the prosecution’s case, the Palestine Committee also created other organizations in the United St a t e s to

s u p p o r t H amas. The Committee created not only HLF but also the Islam i c Association for Palestine (“IAP”), which was a m e di a entity, and the United Association for Studies and Research (“UASR”) , which published papers and books about Hamas. Defendant Baker was also an IAP board memb er. In 1988, Baker founded the Occupied Land Fund as a Muslim charity in Indiana. He, Elashi, and El-Mezain later incorporated t h e o r g a nization in California before renaming it as HLF in 1 9 9 1

. I n 1 992, HLF moved to Texas, where it was located across the street from Elashi’s computer company, Infocom Corporation. HLF stored many of its records and documents at Infocom, which were later seized by the FBI. The defendants raised money through HLF by conducting nationwide fundraising events, conferences, and seminars where HLF sponsored speakers and solicited donations. Some of the events featured songs, performances, and skits glorifying Hamas. Defendant Abdulqader was part of a band that performed at many of these events. He also traveled around the country on HLF’s behalf to speak and raise funds. HLF also conducted teleconf e r e n c e s where participants could listen to featured speakers and donate money. Prior

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to 1995, the individual defend ants and HLF more or less openly supported Hamas. Then, after Hamas was designated as a terrorist organization, the defendants’ support became less obvious. Speakers and pe rformers at HLF fundraising events no longer openly referred to Hamas even though HLF continued to support the same zakat committees that Hamas controlled. From 1992 to 2001, HLF raised approximately $56 million in donations. The Government charged that from 1995 to 2001, HLF sent approximately $12.4 million outside of the United States with the intent to willfully contribute funds, goods, and services to Hamas. 1 During the period from the late 1980s to the early 1990s when HLF was raising funds for the Palestinian c ause, and prior to Hamas’s d e s i gn a t i o n as a terrorist organization, there were ongoing peace talks between Isr a e l a nd the Palestinians, of which the de f e n d a n ts took notice. In September 1993, Yasser Arafat, the leader of the Palestine Liberation Organization (“PLO”), and Israeli Prime Minister Yitzhak Rabin signed what became known as the Oslo Accords. These accords established mu t ual recognition between the Israeli government

an d th e P alestinians. They also created a limited governing body for Palestinians, known as the Palestinian Authority (“PA”). As a political rival of Arafat and his Fatah political party, Hamas opposed the Oslo Accords. One month after the Oslo Accords were signed, Defendants Baker and Elashi, and possibly Abdulqa d er, participated in a meeting at a Philadelphia hotel (“the Philadelphia meeting”) that was secretly recorded by the FBI. The 2

The evide nce sho we d that HLF pr ovide d the fol low ing amo unts to zak at com mi tte es 1 cont roll ed by Ha mas : $366, 585 to the Tulk arem Zak at Com mi tte e; $1,674, 954 to the Islam ic Charit able Soc iet y of He bron (“ ICS He bron”) ; $475, 715 to the Nabl us Zak at Com mi t t e e; $554, 500 to the Jenin Z a k a t C o mm itt ee; $494, 252 to the Rama llah Zak at Com mi tte e; and $295, 187 to the Qa lqi l i a Z a k a t Com mi tte e. In add itio n, HLF se nt $485, 468 to the Islam ic Sci enceandCult ure Com mi tte e f romM ay 199 1 un til the com mi tte e w as clos ed in 1996. Ho tel rec ord s fr om the me eti ng’s loca tio n cont ained Abdulq ade r’s signa tur e, 2 sugges ting thathew as pr es ent, butt he rec ordw as als o m ark ed as having b een voide d. 10 Case: 09-10560 Document: 00511687541 Page: 10 Date Filed: 12/07/2011No. 09-10560

meeting part i c i p a nts, which included many of the members of the Palestine Committee, discussed their opposition to the Oslo Accords, their desire to derail the peace process, and their conti n u e d s u p p ort of Hamas. Statements from Baker suggested an aura of deception and an intent to hi d e a c o n n e c tion to Hamas. At one point, Baker instructed that if anyone should inquire about the
purpose of the meeting, participants should explain that it w a s a “ joint workshop” between HLF and the IAP. He also indicated that the participants should not menti o n “ s a m ah” in an explicit manner and should refer at the session only to “Sister Samah,” which is Hamas spelled backwards. Beginning in approximately 1994, Government surveillance on the defendants included wiretaps on the telephones and facsimile machines of HLF, Baker, El-Mezain, and A b dul q a der . In addition to the wiretaps, the Government conducted searches at the homes of two unindicted co-conspirators, Isma il Elbarasse and Abdelhaleen M a s a n Ashqar, who had also participated in the Philadelp hi a m e eting. The searches yielded numerous documents corroborating the creation of the Palestine Committee and its oversight of HLF as a fundraising arm for Hamas. The documents included organi z atio n al f low ch arts, bylaws, and meet i n g minutes. The amended bylaws identified HLF under its
p r e vi ous name, the Occupied Land Fund, as the “official organization whic h represents the financial and charitable aspect to support the homeland people in the occup i e d territories.” The bylaws further showed that the Muslim Brotherhood had directed the collection “of donations for the Islamic Resistance Movement.” In January 1995 the President issued Executive Order 12947, designating Hamas as a Specially Designated Terrorist (“SDT”). The designation prohibited financial transaction s w i t h or for the benefit of Hamas and authorized the Treasury Department to block assets within the jurisdiction of the United States in which Hamas had an interest. The Executive Order determined, in part, that

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“grave acts of violence committed by foreign terrorists that disrupt the Middle East pe a c e process constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States.” Hamas was further designated as a foreign terrorist organization (“FTO”) by the State Department in 1997 pursuant to Section 219 of the Immigration and Nationality Act, as added by the Antiterrorism and Effective Death Penalty Act of 1996. On December 3, 2001, pursuant to the International Emergency Economic Powers Act, 50 U.S.C. § 1 7 0 1 et seq. (“IEEPA”), the United States designated H L F as a SDT. The next day, the Treasury Department’s Office of Fo r e i gn Assets Control (“OFAC”) issued a blocking order on HLF’s assets. On that same day, OFAC entered HLF’s offices in Texas, New Jersey, Illinois, and California, and seized physical property. The seizure was conducted pursuant to the

a u thority of IEEPA; no judicial warrant was obtained. In April 2002 the FBI sought, and was granted, a w a r r a nt from a magistrate judge to search the property that OFAC had seized. Evidence obtained from that search was used at trial. A search was also conducted at Infocom, where the FBI seized more of HLF’s documents and records. At trial, the Government’s evidence was voluminous and came fro m a variety of sources, including the above seizures, wiretaps, and financial documents. It also included evidence seized by the Israeli military from the zakat committees and from the PA’s headquarters in Ramallah. The key issues addressed by the evidence were the connection between the defen d a n t s a nd Hamas, and Hamas’s control of the zakat committees. The evidence also covered two general time periods: the time before Hamas was designated as a terrorist organization and the time following the designation. Evidence demonstrating the d e f endants’ support of Hamas before the designa tion included numerous video recordings showing several individual defendants appearing at HLF fundraising events attended b y H a m as leaders,

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such as Marzook and Khalid Mishal, who is the cu r r e n t leader of Hamas’s political wing. Th e s p e akers and performers praised Hamas at many of these events, whe r e donations were encouraged and solicited by HLF. Some of the videos were seized from HLF offices, while others were f o u n d b u ried in the backyard of a residence formerly occupied by Fawaz Mushtaha, w h o w a s associated with the Palestine Committee and also played in the same band with Defendant Abdulqader. The Government also presented evidence o f numerous financial transactions betwe e n H L F and Hamas leader Marzook and Marzook’s wife Nadia. Marzook further had personal connections to the defendants as shown

3 through numerous telephone calls to El-Mezain and Baker, and the listing of contact information for El-Mezain, Baker, and Elashi in his personal telephone book. Mohamed Shorbagi, a former HLF representative who pleaded guilty in

a separate case, testified that HLF’s purpose was to suppor t H a m a s . He testified about attending closed meetings with t h e i n dividual defendants and Hamas leaders. He described on e meeting in 1994 where Marzook introduced Mishal, who spoke about the emergence of Hamas and the participants’ roles in supporting the Hamas movement. According to Shorbagi, El-Mezain led a subgroup from that meeting in discussions on fundraising. S h orbagi’s testimony that HLF supported Hamas was consistent w i t h t e s t imony from an Israeli Security Agency employee who provided exper t testimony about Hamas financing. U s i n g t h e pseudonym “Avi” for security

reas ons, the witness testified that most of the zakat committees that received funds from HLF had come under the control of Hamas by 1991. This testimony

was also consistent with conversations captured from the Philadelphia meeting

Nadia is als o the cous in of De fen dant Elas hi. Mar zook wa s him se lf nam ed a Sp ecia lly 3 De signa tedTer ror istin199 5. 13 Case: 09-10560 Document: 00511687541 Page: 13 Date Filed: 12/07/2011No. 09-10560

i n 1 9 93, wherein Muin Shabib, who was later identified at trial as a H a m a s leader, discussed the zakat committees and the extent to which they were “ours,” meaning Hamas. It was also consistent with a 1991 letter addressed to Baker found in Elbarasse’s home that dis cu s sed various zakat committees and used the same language to indicate which committees were controlled by Hamas. P ri o r t o 1995 it was not illegal for HLF to have a relationship with or t o provide support for Hamas. The above evidence was therefore important to establish the defendants’ relationship with Hamas figures and to demonstrate their intent when viewed in conjunction with other evidence of their post-1995 conduct. The Government presented evidence through video recordings, letters,

a n d other documents found in HLF’s possession demonstrating that th e defe n d a n t s c ontinued to support Hamas. For example, in a 1996 video from a fundraising event, Abdulqader sent greetings to Hamas leaders. In 1997 HLF sponsored a teleconference featuring two prominent Hamas speakers. Indeed, HLF maintained a computerized list of featured speakers, last modified in 1999, that included numerous individuals who were identified thr ough testimony as Hamas members. But perhaps t h e strongest evidence that the defendants’ provided support to Hamas after Hamas was designated as a t e r r o ri s t organization came through testimony and financial document s showing that HLF provided funds to the same Hamas-controlled zakat committees that it had supported before the designation. The evidence of Hamas control of the zakat committees was substantial. For example, the Government offered testimony from Dr. Matthew Levitt, an expert on the subject of Hamas, who testified based on his research that Hamas controls many of the zakat committees in the West B a n k a n d Gaza. Avi also testified fro m his personal study of Hamas that all of the zakat committees named in the indictment were Hamas institutions. In addition, the I s r aeli military seized a voluminous amount of evidence relat e d to Hamas from the

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z a kat committees. This evidence included Hamas posters and parapher n a l i a , as well as internal Hamas documents and communications. The evidence also included video recordings seized f r o m t h e zakat committees showing school ceremonies and other events consistent with Hamas ideology and Hamas’s use of its social wing to promote its agenda. Furth e r m o r e, numerous individuals connected to the various zakat committees were identified as prominent Hamas leaders. The defendants’ theory at trial largely was that they did not support Hama s o r terrorism, but rather shared a sympathy for the plight of the Palestinian people through support of the zakat committees and the charitable work the committees p e rf o r med. Their view was that the Government never designated as a terrorist organization any of the zakat committees or anyone connected to the committees. They argued that the Treasury Department had to designate a zakat committee before con t rib utions to it would be unlawful, suggesting that non-designated committees were not controlled by Hamas. The jury rejected the defens e ’ s t h e ories and credited the Government’s evidence by finding each defendant guilty of all applicable charges. The district court imposed sentences ranging from 65 years in prison for Baker and Elashi, to 20 years for Abdulqader, and 15 years for Odeh and El-Mezain. HLF was sentenced to one year of probation. The defendants now ap p e al , r ai s in g m ultip l e cl ai m s of error before, during, and after trial. Despite raising a myriad of issues, including numerous claims of erroneous evidentiary rulings, the defendants do not challenge the sufficiency of the evi d e n c e t o support their convictions. We first address the defendants’ various claims of trial error and their ch a l l e n g e t o the jury charge. We then address a challenge on Fourth Amendment grounds to the search conducted in HLF’s offices in December 2001, and then turn to three se p a r a t e Double Jeopardy issues. Next, we will address the defendant s ’ issues concerning

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classified i nformation, and then we will consider two separate sentencing challenges. After considering the issues raised by the individual defendants, we turn to the separate appeal by HLF a s a c o r porate defendant. Finally, we consider a separate appeal filed by defense attorney Nancy Hollander. II. DISCUSSION A. Testimony of witnesses using pseudonyms The defendants’ first claim of trial er r or involves the district court’s allowance of two witnesses to testify using pseudonyms. One of the witnesses, who used the name “Avi,” was a legal advisor for the Israeli S e c u rit y A gency (“ISA”) and testified as an expert witness about Hamas financing and control of the zakat committees. The other wit n e s s , “Major Lior,” was employed by the Israeli Defense Forces (“ I DF”) and testified as a fact witness to authenticate documents that IDF had seized during a military operation known as Operation Defensive Shield. The di s t ri ct court ruled that the witnesses could use pse u d o ny ms because revealing their true names “would jeopardize national security and pose a danger to the safety of the witnesses and their families.” The defendants argue that the use of pseudonyms by Avi and Major Lior violated the defendants’ Fi f t h A mendment due process right and their Sixth Amendment right to confront witnesses. The defendants contend that they 4 could not verify Avi’s and Major Lior’s credentials or investigate them for prior acts undermining their veracity; they could not present opinion and reputation

e vi d e n c e about their character for untruthfulness, and they could not develo p other impeachment evidence. They f u rther complain that the district court ignored procedures under the Classified Information Procedures Act (“CIPA”), 18 U.S.C. App. 3, § 6, designed to protec t a d e f e n d a nt’s right to present his

Altho ugh the def

enda nts me ntio n the Fift h Ame ndm ent, thei r brie f add res s e s only 4 conf ront atio n and does not dist inguis h the Due Proc es s C laus e fr omthe Sixth Ame ndm ent’ s Confr onta tio n Cla use . The ref ore , wead dr es s this is sueasa conf ront atio n c laim

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defense when classified information is involved. They further note that besides Avi the Government could have called another witness it had n o t i ced as an expert, whose identity was not classified, to testify about Hamas’s control of the zakat committees, and they posit that their constitutional rights would not have been violated had the Government done so. Ordinarily, a district court’s limitation on the scope of the defendant’s cross-examination of government witnesses is reviewed for abuse of discretion. See United States v. Bryant , 991 F.2d 171, 175 (5th Cir. 1993). Alleged violations of the Confrontation Clause of the Sixth Amendment during cross-examination

a re reviewed de novo , applying a harmless error standard. United Stat e s v . Diaz , 637 F.3d 592, 597 (5th Cir. 2011). “Where there is no constitutional violation, we will not find a n abuse of the trial court’s discretion absent ‘a showing that the limitations were clearly prejudicial.’” Id. (citation omitted). Although the Confrontation Clause guarantees the right of a defendant to confront his accusers, th at “right is not unlimited.” Id. The district court has discretion “to imp ose reasonable limits on such cross-examination based on

concerns about, among other thi n g s , . . . the witness’ safety

. . . .” Delaware v. Van Arsdall , 475 U.S. 673, 679 (1986). “What is required is that defense counsel be ‘permitted to expose to the jury the facts from which jurors, as the sole triers

o f f a ct and credibility, could appropriately draw inferences relating to th e reliability of the witness.’” Diaz , 637 F.3d at 597 (citation omitted). In Smith v. Illinois , 390 U.S. 129 (1968), the Supreme Court found error in allowing a witness, who testified about purchasing drugs from the defendant, to use a pseudonym. The Court held that “the very starting point in ‘exposing f a l sehood and bringing out the truth’ through cross-examination mus t necessarily be to ask the witness who he is and where he lives.” Id. at 131 (footnot e and citation omitted). The Court recognized that disclosing the witness’s true identity “open[s] countless avenues of in-court examination and

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out-of-court investigation,” and t h a t closing that avenue “effectively

. . . emasculate[s] the ri gh t o f cross-examination itself.” Id. The defendants urge that Smith ’s reasoning required disclosure of the witnesses’ true names in this case. We are not persuaded that Smithdictates that result. There is “no fixed rule with respect to disclo s u r e.” Roviaro v. United States , 353 U.S. 53, 62 (1957). Instead, there must be a “balancing [of] the public interest in pr o t e c t i n g the flow of information against the individual’s right to prepare his defense,” which d epends on “the particular circumstances of each

c a s e . ” Id. This balancing required disclosure of the witness’s name in S m i t h because the “only real question at t ri al” was the credibility of the single, principal witness, who was the only person, other than the d e fendant, who testified about the crucial events at issue. Smith , 390 U.S. at 130. But Smith , unlike the instant case, did not involve class if i ed information or issues of witness saf e t y . Se e id. at 133–34 (White, J., concurring) (recognizing as beyond the
proper bounds of cross-examination “those inquiries which tend to endanger the personal safety of the witness”). We must account for these considerations in the analysis. Witness safety was a factor in another case involving balancing in United States v. Celis , 608 F.3d 818, 830–32 (D.C. Cir. 2 0 1 0 ), where the District of Columbia Circuit affirmed the use of pseudonyms by Government witnesses from Colombia in a prosecuti o n f o r a drug conspiracy. The defendants and witnesses were connected to Colombian revolutionaries who had threatened to kill cooperating witnesses, which justified the conceal m ent of the witnesses’ identities at trial. Id. at 833. Because the Government planned to have the witnesses testify about their involv e ment with the defendants and drug trafficking, however, it was necessary to allow the defendants an opportunity to attack their credibility. Id. To enable such confron t a t i o n, the district court issued a protective order allowing defense counsel to learn the true names of the

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witnesses for inv e s t igative purposes only days before the testimony was to be given at trial. Id. The court of appea l s h e l d t h a t this approach was “an appropriate balancing of interests in the relevant case-specific context.” Id. In the instant case, the district cou rt conducted a similar balancing of interests but concluded that there should be no disclosure of the witnesses’ true

names. It held that “defendants’ interest in obtaining the name s o f the witnesses is outweighed by the Government’ s n e e d to keep the information

s e cret.” We agree. First, we conclude that there was a serious and clear n e e d to protect the true identities of Avi and Major Lior because of concerns for their safety. The Government showed that Hamas and other terrorist organizations seek out the true identities of ISA agents and their families and publish descrip t i o n s of ISA officers on websites so that they can be targeted. The witnesses’ names are thus classified under both Israeli law and American law, and, as noted by the district court, the true identities of the witnesses were provided to United States authorities with the expectation that they would be closely guarded and kept secret. Sec ond, when the national security and safety concerns are balanced against the defendants’ ability to conduct meaningful cros s - e x a mination, the scale tips in favor of m a i n taining the secrecy of the witnesses’ names. The Government disclosed to the defense over twenty volumes of material that Avi used to formulate h i s expert opinion about Hamas financing. Moreover, the Government agreed in pretrial filings that the defense would be permitted to ask Avi about his background, his training and e xp e ri e n ce with the ISA, his legal educ a ti o n , a n d his potential bias in favor of Israelis in the West Bank. The defense was therefore well-armed with information upon which to confront and cross-examine both Avi and Major Lior, and a review of the trial record in fact shows that the defense was able to conduct effective cross-examination. See Van A rs da l l , 4 7 5 U

. S

. at 6 7 9 (“‘ [T]he Confrontation Clause guarantees an opportu n i t y
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for effective cross-examination, not cross-examinat i o n that is effective in whatever way, and to whatever extent, th e defense might wish.’”) (citation omitted). As evidence of possible bias, the defense highlighted both witnesses’ close connection to the Israeli military. With respect to Major Lior, the defense focused on the military nature of the Israelis’ seizure of evidence from the zakat committees, and the fact that the military also entered mosques, schools, and orphanages, thereby casting negative light on both the witness and the military operation. The defense also elicited from Major Lior the fact that he did not personally seize the evidence at issue, that he did not know precisely where inside the zakat committees the various items in evidence were found, and that he did not know if any items were left behind in the committees. These questions suggested a lack of knowledge and familiarity with the subject matter, and also suggested that exculpatory evidence may have been overlooked. With respect to the cross-examination of Avi, the defense also was able to ask questions designed to cast doubt on the witness as a biased Israeli security agent. The defense highlighted f o r the jury the fact that Avi was testifying under a n a s s u m e d name and that defense counsel could not research him or verify ce r t a i n opinions. Defense counsel elicited from Avi the fact that he had

never been to a zakat committee or spoken to people who had received assistance from the committees, he had not been i nvolved in the seizure of evidence from the committees, and he had not polled Palestinians about the zakat committees. The defense also asked about Avi’ s w o r k p r oduct and the materials he relied
upon in r e a c h i n g h is opinions. The defense challenged Avi’s credibility on the subject of Hamas control of the zakat comm it t e e s, as well as the basis for his knowledge, by (1) eliciting the fact that no Hamas materials were found in the offices of certain zakat committees that Avi claimed were controlled by Hamas, (2) asking whether he knew that the Un ited States Agency for International

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Development (“USAID”), a gover n m e nt organization, had given money to and visited a committee that Avi testified was allegedly con t r o l l ed by Hamas, (3) showing him statements in Government exhibits that indicated a lack of Hamas presence in zakat committees that he said were controlled by Hamas, and (4) asking him questions to demo n s t r a t e a lack of knowledge about the internal election proceedings of the zakat committees. We conclude from the above that, although the defense could not verify the witnesses’ credentials, the district court correctly observed that the defendants had access to significant information regarding the witnesses’ employment, nationalities, and backgrounds in order to conduct meaningful crossexamination. They also had access to substantial material that formed the basis for Avi’s expe r t o p i ni o n . With all of this information, the defense was able to probe for bias and test the basis of the witnesses’ knowledge. Because “the jury had sufficient information to appraise the bias and motives of the witness,” there

was no Sixth Amendment violation. United States v. Tansley , 986 F.2d 880, 886 (5th Cir. 1993). The defendants complain, however, that they were unable to conduct a f o c u s e d attack on Avi’s and Major Lior’s credibility, and they argue that th e witnesses’ true identities could have been disclosed for investigative p u r poses only to defense counsel under a protective order similar to the order in Celis

. We consider this point as part of a prejudice analysis. See Diaz, 63 7 F .3d at 599 (when there is no Sixth Amendment violation, we “examine whether th e t ri a l court’s restrictions on cross-examination were so prejudicial as to r e s ult in an abuse of discre t i o n” )

. W e agree with the district court that disclosure of the witnesses’ true names to defense counsel for a limited investigation was unlikely to yield useful information. Because the names of the witnesses were classified, unlike in Celis , it is unlikely that anyone who knew the witnesses’ true names could or would discuss them with d e f e nse counsel. The defendants therefore

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cannot show a reasonable probability that the jury might have assessed the witnesses’ testimony any dif f e r e n tly had they been allowed to learn the witnesses’ true identities. See United States v. Davis , 393 F.3d 540, 548 (5th Cir. 2004) (holding that to demonstrate prejudice the defendant “must show that a reasonable jury might have ha d a significantly different impression of the witness’s credibility if d efense counsel had been allowed to pursue the question i n g” ). In light of the danger to Avi’s and Major Lior’s personal safety that could have been c a used by disclosure of their true names, and the unlikelihood that the jury woul d h av e assessed credibility any differently, the district court’s decision to p r eclude disclosure of the witnesses’ names was not an abuse of discretion. Under all the circumstances, the defendants had a more t h a n a dequate “opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a te s t

. ” S m i th , 390 U.S. at 132; see also Diaz, 637 F.3d at 597; United States v. Abu Marzo o k , 4 1 2 F. Supp. 2d 913, 923–24 (N.D. Ill. 2006) (holding, in a prosecution for materially supporting Hamas, that ISA agents could testify using pseudo nyms because of the classified nature of their true identit i e s , and that doing so did not violate the defendant’s Sixth Amendment con f

r o ntation rights because the defendant was free to

cr o s s - e x a m i ne the agents “on the basis of their direct testimony or any other
proper basis”). Moreover, the district court instructed the jury t h a t i t could consider the witnesses ’ u s e of assumed names when assessing the credibility and weight of the testimony. We therefore hold that the district court did not violate the defen d a n t s ’ confrontation rights by allowing Avi and Major Lior to testify using pseudonyms. B. Hearsay evidence The defendants contend that the district court improperly adm i t t ed the following three categories of hearsay evidence that linked the defendants to

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Hamas or that linked Hamas to t h e z akat committees: (1) the testimony of Mohamed Shorbagi, (2) docume n t s s eized by the Israeli military from the headquarters of the Palestinian Authority during Operation Defensive Shield, and (3) do cu m e nt s s ei z e d f ro m th e ho m e s of unin dicted co-conspirators Elbarasse and Ashqar. We review the district court’s evi d entiary rulings for an abuse of discretion. United States v. Jackson , 636 F.3d 687, 692 (5th Cir. 201 1). Befo r e addressing the defendants’ specific evidentiary challenges, we pause to note that the h e arsay issue, like the defendants’ other evidentiary issues raised on appeal, is subject to a harmless error analysis if we find there

was an error. See id. A reversal will not be warranted unless the d e fendant shows “that the district court’s ruling caused him substantial prejudice.” United States v. Bishop , 264 F.3d 5 3 5 , 5 4 6 (5th Cir. 2001); see F E D

. R. E V I D

. 103(a). Because the defendants have raised on appeal multiple c l a ims of evidentiary

error at trial, we first address the evidentiary claims to decide if an er r or occurred. Except for certain issues related to testimony from John McBrien and S t e v e n Simon, which we will explain below, we then consider in a combined discussion whether any errors we identify may be considered harmless.

1. Mohamed Shorbagi M o h amed Shorbagi was a representative of HLF in Georgia who hel p e d raise funds for the organization. He pleaded guil t y i n a separate case to providing material support to Hamas through HLF, and he testified in the instant case as part of a plea agreement. Shorbagi testified that H amas controlled several zakat committees in the West Bank and Gaza to which HLF donated money. He also identified several people assoc i ated with the committees as Hamas leaders, and he stated that HLF was a part of Hamas. The defendants challenge this testimony as improper hearsay, contending that Shorbagi merely repeated what he had read in n e w s papers and what he had learned from friends. At one point during his testimony, the Government asked

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Shorbagi the ba s i s for his knowledge, and he responded: “It came from
newspapers, it came from leaflets, it came from Hamas–the internet later on in ’98, ’99, the website of Hamas, an d from also talking among friends.” The defendants base their argument on appeal in large part on this exchange. “‘Hearsay’ is a statement, oth e r than one made by the declarant while testifying at the trial o r h e ari n g , offered in evidence to prove the truth of the matter asserted.” F E D

. R. E V I D

. 801(c). If Shorbagi was merely repeating what he had read or w h a t s o m eone had told him, it would be hearsay and inadmissible. See, e.g., Roberts v. City of Shreveport , 397 F.2d 287, 295 (5th Cir. 2005) (newspaper articles are “classic inadmissible hearsay”); see F E D

. R. E V I D

. 802. However, Shorbagi’s testimony is more complicated than that, as a review of the record shows that he possessed personal knowledge of some of the facts to which he testified. A witness’s testimony must be based on personal knowledge. United States v. $92,203.00 in U.S. Currency , 537 F.3d 504, 508 (5th Cir. 2008); see F E D

. R. E V I D

. 602 (“A witness may not testify to a m a t t er unless evidence is introduced sufficient to support a f i n di n g that the witness has personal knowle d g e o f the matter.”). The personal knowledge requirement and the hearsay rule “are cut at least in part from the same cloth,” as Rule 602 prevents

a witness from testifying about a hearsa y s t a tement upon which he has no personal knowledge. United States v . Q u ezada , 754 F.2d 1190, 1195 (5th Cir. 1985). It is axiomatic that a witness may not merely repeat the subject matter of a hearsay statement, nor may he rely on inadmissible hearsay as a substitute for his own knowledge. Id. If the evidence supports a finding that the witness does possess personal knowledge, however, he may testify on that basis. Id. In the instant case, we conclude that Shorbagi’s testimony r e v ealed a close association with and knowledge of HLF and the individual defendants, as well

as HLF’s fundraising activity, that demonstrated personal knowledge and made

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h i s testimony about HLF’s connection with Hamas admissible. His tes t i m o ny about Hamas’s control of specific zakat committees is more problematic. After coming to the United States from Gaza to attend college, Shorbagi became a volunteer for several Mus l i m organizations and attended various conferences sponsored by those organizations around the c o u nt ry . He also helped raise money first for t h e O c cupied Land Fund and then for HLF. He conti n ued to raise funds for HLF when he moved to Rome, Georgia, where he collected donations for HLF as the emam at the mosque and helped coordinate
appearances by HLF speakers. Shorb a gi testified about attending closed meetings at conferences with some of the individual defendants, as well as with Hamas leaders, such as Marzook and Mishal. He person ally attended a 1994 meeting with Baker, Elashi, and ElMezain, where Hamas leader Mishal spoke about Hamas and the role of the attendees in supporting H a m a s . Shorbagi explained that a financial subcom m i t tee then met in a break-out session headed by defendant El-Mezain. Shorbagi testified that his personal understanding of the committee’s p u rpose

was to raise money to donate “[t]o organizations controlled or founded by Hamas in the occupi e d t e rritories.” Similarly, Shorbagi was personally present when El-Mezain came to Rome on a fundraising trip accompanied by Mohamed Siam, who was shown by other witnesses to be c o n n ected to Hamas. Although Shorbagi’s testimony concerned events that occurred before it became illegal to donate to Hamas, the testimony demonstrated that he had inside knowle d ge and personally knew that HLF’s fundraisi n g aimed to assist Hamas. See United Stat e s v. Cantu , 167 F.3d 198, 204 (5th Cir. 1999) (“Personal knowledge can include inferences and opinions, so long as they are grounde d i n p e r s onal observation and experience.”) (internal quotation marks and citation omitted). Shorbagi also had personal knowledge about HLF’s activity after Hamas

was designated as a terrorist organization. He testified, for example, that HLF

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provided money to the same organizations in the West Bank after Hamas was designated as a terrorist organization as before the des i gn a t ion, although he stated that HLF changed its manner of distribution after it opened an office in Gaza. H e e x p lained that Baker had stated that money would be sent to the Gaza office for further distribution rather than to specific individuals. Furthermore, Shorbagi testified that the conferences and festivals at which HLF participated changed after Ha m a s was designated as a terrorist organization insofar as Hamas was no longer mentioned in the songs or speeches. Shorbagi’s testimony w a s based on personal knowledge, as he continued to represent HLF at fundraising events during this time. He testified, for example, that he personally participated in fundraising events in Rome and Atlanta in 1999. It is clear from the above testimony that Shorbagi had an adequate basis to testify about HLF’s purpose in raising money to support Ham a s . Se e Quezada , 754 F.2d at 1195 (“[E]ven if testimony is based in part on inadmissible hearsay, Rule 602 will be satisfied if evidence is introduced sufficient to support

a finding that [the witness] has personal knowledge of th e m a t t e r . ”) (internal quotation marks omitted). Whether Shorbagi had knowledge that Hamas controlled certain zakat committees is not as clear. Shorbagi expressly testified that Hamas controlled the zakat committees in Nablus, Jeni n , Ramallah, and Hebron, all of which were charged in the indictment as receivi n g f u n ds from HLF. Shorbagi may very well have personally known that these committees wer e c o n trolled by Hamas from his activity in raising money for HLF, from attending conferences with the individual defendants, and from meeting various Hamas leaders at the conferences. However, when asked the crucial question as to the basis for this specific knowledge, Shorbagi gave as examples “newspapers,” “l e a f lets,” the “internet,” and “friends.” These sources constitute classic hearsay rather than

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personal knowledge. See, e.g., Roberts , 397 F.2d at 295 (newspapers are hearsay); United States v. Jackson , 208 F. 3 d 6 3 3 , 637 (7th Cir. 2000) (web postings fro m t h e I nternet were inadmissible hearsay). In an effort to rehabilitate Shorbagi’s answer, the Government asked if the “friends” to which Shorbagi referred were persons who were invo lv e d with him in supporting Hamas and organizations like HLF. But Shorbagi’s affirmative response did not transform his apparent reliance on the statements of others, whether they were similarly situated to him or not, into personal knowledge. We therefore conclude that Shorbagi’s testimony that Hamas controlled the zakat committees w a s hearsay, and it was error for the district court to allow it. We consider below 5 whether the error was harmless.

2. Documents seized from the Palestinian Authority The defendants next challenge on hearsay grounds the admission of three documents (“the PA documents”) seized by the Israeli military in 2002 from the PA headquarters in Ramallah. They are: (1) Government exhibit PA 2, an undated document entitled, “Who is financing Hamas,” th a t lists HLF as a financial resource for Ha m a s ; (2) Government exhibit PA 8, entitled “Palestinian National Authority G e neral Intelligence Ramallah and al-Bireh Government, Security Work Plan,” a 30-page report indicating that the Ra m allah Zakat Committee “has relations with the I s l a m i c Movement” in Israel, which is affiliated with Hamas, and that its leaders and members “are Hamas;” and (3) Government exhibit PA 9, a one-page document dated December 22, 2001,

The def enda nts als o com plai n that Shorbagi im per mi ss ibly ide ntif ied the fol low ing 5 individual s as Ha mas lead ers : Fuad Abu Zeid fr om the Jenin Zak at Com mi tte e, Abdel Kh aleq Nat she fr om t h e z a k at com mi tte e in He bron , and Jam il Ha mam i, wh o Shorbagi st ated wa s fr om an Islam ic cent er in Jeru sal em . The bas is for Shorbagi’s kn ow led ge about Z e i d a nd Nat she is not clea r fr om the tra nsc rip t. Shorbagi tes tif ied , how ever, that he me t Ha mam i on se par ate occ asi ons in 1990 and 1994 wh en Ha mam i cam e to the Unit ed Sta tes to rais e mo ney, wh ich wa s coll ect ed by HLF. He ther efo re had per so nal kn ow led ge of Ha mam i. The eff ect of any e rro r in Shorbagi’s id enti fic atio n o f Ze id and Nat sheis c ons ide redbe low

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p u rportedly from Major Khalid Abu-Yaman, Director of Operations, o n PA General Security letterhead concerning the Ramallah Zakat Committee and asserting that “Officials and members of this committee are associated with the Hamas Movement and some of them are activists in the Movement.” The PA documents were excluded from the first trial but admitted at the second trial over defense obje ction under F E D

. R. E V I D

. 807, the residual exception to the hearsay rule. The Government argued that the documents had sufficient indicia of trustworthiness because the Israeli military had seized them from the PA headquarters and they were therefore akin to public records. The district court agreed, noting that the documents were not prepared in advance for litigation purposes and that two of them “app e a r to have some kind of letterhead.” We conclude that the Government’s justification for admitting the documents was insufficient to prove their trustworthiness, and they should have been excluded from the second trial. Rule 807’s residual hearsay excep tion allows the admission of hearsay statements that are not cove r e d b y another exception if the statements have “equivalent circumstantial guarantees of trustworthiness” and the district court determines that they are material, probative, and in the interests of justice. See 6

Thef ull textof

t he rulep rovid es as f ollo ws : 6
A stat em ent notspe cif ical ly covere d by Rule 803 or 804 but having equivale nt cir cum st antial guarant ees of tru st w ort hines s, is not exclud ed by the hear say rule , if the cour t det erm ines that(A) the st atem ent is off ere d as evide nce of a mat eria l fac t; (B) the st atem ent is m o re pr obat ive on the poi nt for wh ich it is off ere d than any othe r e viden ce wh ich the pr opo nent can pr ocur e thr ough reas onable eff

ort s; and (C) the genera l pur pos es of thes e rule s and the inte res ts of just ice wi ll bes t be se rved by adm iss ion of the st atem ent i n t o evide nce. Ho we ver, a st atem ent may not be adm itt ed unde r this exce p t i o n u nles s the pr opo nent of it mak es kn ow n to the adver se par ty suf fic ient ly in advanc e of the tri al or hearing to pr ovide the adver se par ty with a fai r opp ort unity to pr epare to me et it, the prop onent ’s inte ntio n to off er the st atem ent and the par tic ulars of it, in clud ing t he nam e a nd add res s of the dec laran t.
F E D

. R. E VID

. 807. Rule 807 wa s for me rly em bodied in the res idua l excep tio ns of for me r Rules 28 Case: 09-10560 Document: 00511687541 Page: 28 Date Filed: 12/07/2011No. 09-10560

F E D

. R. E V I D

. 807; United States v. Ismoila , 100 F.3d 380, 393 ( 5 t h C i r . 1996). The district court i s giv e n w ide latitude in admitting evidence under the rule, and we “will not disturb the district court’s application of the exception absent a definite and firm conviction that the court made a clear error of judgment in the conclusion it reached based upon a weighing of the relevant factors.” United States v . P

h illips , 219 F.3d 404, 419 n.23 (5th Cir. 2000) (internal quotation marks and citation omitted). Nevertheless, the “exception is to be ‘used only rarely, in truly exceptional cases.’” Id. (cit a t i o n omitted). Moreover, “[t]he proponent of the statement bears a heavy burden to come forward with indicia of both trustworthiness and probative f o rce. In order to find a statement trustworthy, a court must find th a t the declarant of the

. . . statement ‘was particularly likely to be telling the truth when the statement was made.’” Id. (internal quotation marks and citations omitted). We therefore focus on t h e “equivalent circumstantial guarantees of trustworthines s ” requirement, which is the “lodestar of the residual hearsay exception analysis.” United States v. Walker , 410 F.3d 754, 758 (5th Cir. 2005). The determination of trustworthiness is “drawn from the totality of the circumstances surrounding the making of the statement, but [it] cannot stem from other corroborating evidence.” Ismoila , 100 F.3d at 393 (c i t ing Idaho v. Wright , 4 9 7 U

. S

. 805, 820–22 (1990)). “[E]vidence possessing ‘particularized guarantees of trustworthiness’ must be at least as reliable as evidence admitted

u n d e r a firmly rooted hearsay exception

. . . [and] must similarly be so trustworthy that adversarial testing would add little to its reliability.” Wright , 497 U.S. at 821 (citations omitted).

803( 24) and 804(b)( 5), wh ich we re cons olid ated into Rule 807 in 1997 wi th no inte nded change in me aning. See Uni ted States v. Walker , 4 1 0 F

. 3 d 7 54, 757 (5t h Cir. 2005) (c itin g F E D

. R. E VID

. 803 advis ory com mi tte e’s no te)

. 29 Case: 09-10560 Document: 00511687541 Page: 29 Date Filed: 12/07/2011No. 09-10560

As it argued to the district court, the Government maintains on ap p eal that the PA documents are reliable and trustworthy because they are essentially public reco r d s , w hich ordinarily are admissible under Rule 803(8). It is 7 therefore proper to measure the PA documents against the requirements of the public records exception. See 2 KE N N E T H S. B R O U N , M C C O R M I C K O N E V I D

. § 324 (6th ed.) (noting that for purpos e s of Rule 807 “courts frequently compare the circumstances surrounding the statement to the closest hearsay exception”); see also United States v. Wilson , 249 F.3d 366, 375–76 (5th Cir. 2001) (holding that, although foreign bank records were not admissible under the business records exception because there was no custodian available to testify, the district court properly admitted the documents under Rule 807 because “bank documents, like other business records, provide circums t antial guarantees of trustworthiness because the banks and their custo m e r s r e ly on their accuracy in the course of business”), abrogated on o t h e r grounds by Whitfield v. United States , 543 U.S. 209 (2005). The public records exception to the hearsay rule “is designed to permit the admission into evidence of public records prepared for purposes independent of speci fic litigation.” Quezada , 754 F.2d at 1194. It is based on the notion that public records are reliable because there is a “lack of

. . . motivation on the part

Ther ule pr ovide s thatt he fol low ing e viden ce is adm iss ible: 7
Recor ds , rep ort s, st atem ents , or dat a com pil atio ns, in any for m, of publ ic off ices or agenci es , se tti ng for th (A) the act ivitie s of the off ice or agency, or (B) mat ter s obs erved pur sua nt to duty im pos ed by law as to wh ich mat ter s ther e wa s a dut y to rep ort , exclud ing, how ever, in cri mi nal cas es mat ter s obs erv ed by pol ice off icer s and othe r law enf orc em ent per so nne l , o r ( C) in civil act ions and pr oce edi ngs and agains t the Go vernm ent in cri mi nal cas es , fac tual fin d i n g s res ulti ng fr om an inves tigat ion m a d e p urs uant to autho rit y grant ed by law , unles s the so urc es of info rm atio n or othe r cir cum st ance s indi cat e lack of tru st wo rth ines s. F E D

. R. EVID

. 803( 8). 30 Case: 09-10560 Document: 00511687541 Page: 30 Date Filed: 12/07/2011No. 09-10560

of the recording official to do other than mechanically register an unambiguous factual matter.” Id. ; see also Moss v. Ole South Real Estate, Inc. , 933 F.2d 1300, 1308 (5th Cir. 1991) ( e x p l aining that the public records hearsay exception is premised on “public officials doing their legal duties,” such that the usual “distrust” of statement s made by out-of-court declarants does not apply). The Government contends that the PA documents have sufficient circumstantial guarantees of trustworthiness as public docume n ts under Rule 803(8)(A) and 803(8)(B) because the facts in the documents merely represent “activities of the office” or “matters observed pursuant to duty.” 8 The matte r s r e p o r t ed in the PA documents have nothing to do with the PA’s own activity, but rathe r d escribe the activities and financing of Hamas. Theref o re, the guarantee of trustworthiness associated with a public agency merely recording its own actions is not present. See Rule 803(8)(A). Moreover, the conclusions stated in the PA documents are not the kind of objective factual matters we h ave found to be reliable under Rule 803(8)(B) when reported as a matter of course. See, e.g., Quezada , 754 F.2d at 1194 (holding that deportation record containing date and location of deportation was reliab le under Rule 803(8)(B) because the document contained a “routine, objective observation[], made as part of the everyday function of the preparing official”); United States

The def enda nts cont end that i f t h e d o c ume nts are public rec ord s, they fal l unde r 8 sub se cti on (C) and are inad mi ss ible beca use public rec ord s unde r that sub se cti on may not be use d agains t a def

enda nt in a c rim inal cas e. SeeF E D

. R. E VID . 803( 8)( C). We do notreso lve this iss ue beca use the q u e s t i o n i s not wh ethe r the doc ume nts are adm is si ble unde r Rule 803( 8), but rather whet her they have suf fic ient indi cia of tru st wo rth ines s that wo uld perm it adm iss ion unde r Rule 807. See Wilson , 249 F.3d at 374 n.5 (Rule “807 ‘is not lim ite d in availabi lity as to type s of evide nce not add res se d in othe r excep tio ns . . . 807 is als o availabl e wh en the pr opo nentf

ails t o m eett he st andar ds s et for th in the othe r excep tio ns. ’”) (cit atio n om itt ed) ; 2 K E NN E T H S. B R OUN , M C C ORMI C K ON E VID

. § 324 (6t h ed. ) (“The alm os t unanim ous opi nion of the co u rts is that fai ling to qualif y unde r an enum erat ed excep tio n doe s not d i s q u alif

y adm iss ion unde r the res idua l excep tio n.” ). The Go vernm ent pr om ote s Rule 8 03(8)(A) and (8) (B) as pr ovidi ng cir cum st antia l guarant ees of tru st wo rth ines s t o t h e PA doc ume nts , but as weexp lain, w e a re not per sua dedby this ar gume nt. 31 Case: 09-10560 Document: 00511687541 Page: 31 Date Filed: 12/07/2011No. 09-10560

v. Dancy , 861 F.2d 77, 79–80 (5th Cir. 1988) (findin g that fingerprint card containing defendant’s fingerprints, physical description, sentence, and prison reporting date admiss ib l e under Rule 803(8)(B)); United States v. Puente , 826 F.2d 1415, 1417 (5th Cir. 1987) (holding that computer printouts showing that vehicle crossed the border at a specific time were reliable under Rule 803(8)(B) because license plate number was observed and recorded by customs officer complying with agency directives and procedures that were adopted to carry out its legal duty to protect the border). Instead, the PA d o c u ments contain conclusions about Hamas control of th e R amallah Zakat Committee and the

sources of Hamas financing that were reached through unknown evaluative

means. This leads to a larger problem with the documents: there is nothing known about the circumstances under which the documents were created, the duty of the authors to prepare such documents, the proce d u r es and methods used to reach the stated conclusions, and, in the case of two of the do c u m e n t s , the identities of the authors. See, e.g., United States v. Vidacak , 553 F.3d 344, 351 (4th Cir. 2009) (holding th at re c or d s seized from a brigade headquarters showing that the defendant had served in the Serbian army were admissible as public records where a witness t e s t i f i e d about the documents’ seizure and explained how the army maintained and organized its records pursuant to specific procedures); United States v . Dumeisi , 424 F.3d 566, 575–77 (7th Cir. 2005) (holding Iraqi i ntelligence documents admissible under Rule 807 where witnesses positively identified the documents, as well as handwriting, symbols, codes, abbreviations, and signatures on them, and also testified that the officers had a duty to accurately record their activities a n d i nf ormation received from other sources). We know only that the PA documents were found in the possession of the PA. Although Avi testified tha t the PA had an interest in monitoring Hamas

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and the zakat committees, there is nothing in the documents or the record that reveals whether the declarants had firsthand knowledge of t h e information reported, where or how they obtained the information, and whether there was

a legal duty to report the matter. See United States v. Cent. Gulf Lines, Inc. , 974 F.2d 621, 626 & n.10 (5th Cir. 1992) (holding that for evidence to be admissible under public records hearsay exception, person making r e p o rt must have observed matters first hand and acted pursuant to a legal duty); United States

v. Perlmuter , 693 F.2d 1290, 1293–94 (9th Cir. 1982) (sam e) ; s e e a lso 4 C H R I S T O P H E R B. M U E L L E R & LA I R D C. KI R KPAT R I C K , F E D

. E V I D

. § 8:88 (3d ed.) (for public records falling unde r Rule 803(8)(B) “the source of the recorded information must have personal knowledge, as the phrase ‘matters observed’ implies”). For example, nothing is known or can be inferred about the author of PA 2, whi c h i s n o t on official letterhead and contains an illegible signature. The document also contains apparent double hearsay because it refers vaguely to unnamed “Western S o urces,” “security experts,” and “western security organizations.” PA 8 is on plain pap e r w i t h a spiral binding and contains no

c e rtifications, signatures, letterhead, official seals, or other indicia of official record keepin g , except for a notation that vaguely reads, “Prepared by: The Operation Room.” It contains nothing further about where the reported information was obtained. PA 9 is on letterhead and i d e n t i fies the declarant, but it contains only conclusory statements with no explanation of how or why the document was created. The Government argues that the PA had a “strong incentive” to report accurate information about Hamas. There is no doubt that may be true, but the Government p o ints to nothing in the record about the PA’s practice of record keeping. There is also nothing in the documents or the record showing that the declarants in these documents were especially likely to be telling the truth. See

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Phillips , 219 F.3d at 419 n.23. We therefore cannot say that there was little to gain from further adversarial testing. Without further information about the circumstances under which the PA documents were created, we are faced with conclusory assertions amounting to classic hearsay and no facts from which to divine the documents’ reliability. We realize that when dealing with foreign documents , i t m ay not be possible for the Government to learn every detail about the evidence, especially when it has been s e i z e d i n a military operation. We do not foreclose the possibility that obtaining documents in such a manner from an adversary may have some probative value and could , at l east under some circumstances, be indicative of trustworthiness. But the instant documents were not offered merely for their probative value, and their seizure from the PA, without more, does not impart sufficient indicia of trustworthiness in this case to permit their admission. We do not even know, for example, if the PA created PA 2 and PA 8,

or whether the documents were created by some third person or agency and were merely collected by the PA as intelligence. See, e.g., United States v. Doyle , 130 F.3d 523, 547 (2d Cir. 1997) (questioning reliability of “ p riv a t ely-generated, business records without further foun d atio n , eve n tho u gh th e re cords were found in the possession of a foreign government agency”). We therefore conclude that the district court erred in finding that the PA documents contained sufficient indicia of trustworthiness pursuant to Rule 807’s residual hearsay exception.

3. Elbarasse and Ashqar documents Fi n a l ly, the defendants raise a hearsay challenge to the admission o f documents discovered in the homes of unindicted co-conspirators Ismail Elbarasse and Abdelhaleen Masan Ashqar (together “the Elbarasse and Ashqar documents”). The documents, which dated from the late 1980s and early 1990s,

were discovered by the FBI pursuant to search warrants. They included annual reports, meeting agendas and minutes, financial records, w o rk papers, and

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telephone directories that documented the activities of the Palestine Committee and demonstrated the defendants’ participation with the Committee. Many of the documents referenced defendants Elashi, El-Mezain, and Baker by name, as well as HLF. Viewed in the light most favorable to the Gove r n m ent, the Elbarasse and Ashqar documents showed that HLF was a fundraising arm for the Palestine Committee in support of Hamas. For example, one of the documents, Elbarasse exhibit 13, was a 1989–90 “annual report” for the “Palestine Committee.” It reported the “achievement” of raising over $728,000 by the Occupied Land Fund, the former name of HLF, for “people on the inside.” It also asked the United States Muslim Brotherhood for “moral support” fo r t he committee’s work in “support for the emerging movement, the Hamas Movement.” Elbarasse exhibit 7 was another Palestine Committee document. It contained proposed amendments to the Committee’s by-laws, and it expressly recognized HLF a s “t he official organization which represents the financial and charitable aspect to support the homeland people i n the occupied territories.” The document further noted that the M u s l i m Brotherhood had issued instructions to col l e c t donations “for the Islamic Resistance Movement.” Still another document, Elbarasse exhibit 11, was a meeting agenda for the “Financial Committee.” Referencing HLF as “the Fund,” the agenda set forth work assignments for Elashi, Baker, and El-Mezain. An

or gani z atio n al ch art f

or th e “P al e s tin e C ommittee,” Elbarasse exhibit 10, show e d Hamas leader Marzook as the C h a i r m an. It also showed the Committee functions served by HLF, Baker, El-Mezain, Elashi, and Elbarasse. The defendants obj e c ted to the Elbarasse and Ashqar documents as hearsay, arguing tha t m any of them were unsigned and pre-dated Hamas’s designation as a terrorist organization. The district court admitted them as nonhearsay statements of co-conspirators pursuant to Rule 801(d)(2)(E) of the Federal Rules o f Evidence. The defendants argue on appeal that the district

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court abused its discretion in admitting the do cu m e nt s b ec au s e Rul e 8 0 1(d)(2)(E) applies only to statements m a de in furtherance of conspiracies, and the Elbarasse and Ashqar documents could not have been made in furtherance of a conspira c y to support Hamas since they were created before 1995 when such support became illegal. The defendants further argue th a t the Government failed to show that there was a n agreement between the declarants and the defendants, or that the documents were made in furtherance of that agreement. The defendants insist that the documents are therefore inadmissible hearsay. “A statement is not hearsay if

. . . [t]he statement is offered against a party and is

. . . a statement by a coconspirator of a party during the c o u r s e and in furtherance of the co n s piracy.” F E D

. R. E V I D

. 801(d)(2)(E). “Under our precedent, ‘[t]he proponent of admittance under Rule 801(d)(2)(E) must prove by

a preponderance of the e vidence (1) the existence of a conspiracy, (2) the

s tatement was made by a co-conspirator of the party, (3) the statem e n t w a s made during the course of the conspiracy, and (4) the statem e n t w as made in furtherance of the conspiracy.’” United States v. Solis , 299 F.3d 42 0, 443 (5th Cir. 2002) (quoting Phillips , 219 F.3d at 418 n. 21). The content of the statement may be considered as part of the analysis, but there must also be independe nt evidence establishing the factual predicates for Rule 801(d)(2)(E). See U n i ted States v. Sudeen , 434 F.3d 384, 390 (5th Cir. 200 5). Although the rule speaks of statemen t s m a de in furtherance of a “conspiracy,” we have recognized th at a dmi s s ib ility under Rule 801(d)(2)(E) does not turn on the criminal nature of the endeavor. See United States v. Postal , 589 F.2d 862, 886 n.41 (5th Cir. 1979). Instead, a statement may be admissible under Rule 801(d)(2)(E) if it is made in furtherance of a lawful joint undertaking. “One can qualify as a ‘joint venturer’ for the purposes of Rule 801(d)(2)(E) merely by engaging in a joint plan–distinct from the criminal conspiracy charged–that

was non-criminal in nat u r e . ” U n i t ed States v. Holy Land Found. for Relief &

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Dev. , 624 F.3d 685, 694 (5th Cir. 2010); see also United States v. Saimiento-Rozo , 676 F.2d 146, 149 (5th Cir. 1982) (noting that under Rule 801(d)(2)(E) there is

no “need [for] the conspiracy or agreement [to] be criminal in nature; it may be in the form of a joint venture”). Pursuant to this “joint v e nture” theory, a statement is not hearsay if it was made during the course and in furtherance of

a common plan or endeavor with a party, regardless of the non-criminal nature of that endeavor. For example, in Postal we held that a ship’s logbook was admissible under Rule 801(d)(2)(E) as a co-conspirator statement in a drug conspiracy prosecution because “it is not necessary that the conspiracy upon which admissibility of the statement is predicated be that charged. Moreover, the agreement need not be criminal in nature.” Postal , 589 F.2d at 886 n.41. We concluded that the ship’s

crew were engaged in the voyage of the ship, which “was a ‘joint venture’ in and of itself apart from the illegality of its purpose,” and the logbook was created in furtherance of the voyage. Id. In support of the conclusion that an agreement between co-conspirators need not be unlawful to support admission under Rule 801(d)(2)(E), we quoted the legislative history of the rule: “While (this) rule refers to a coconspirator, it is this committee’s understanding that the rule is mea n t to carry forward the universally accepted doctrine that a joint venturer is considered as a coconspirator for the purp o s e s o f this rule even though no conspiracy has been charged.”
Id. (quoting S. Rep. No. 93-1277, 93d Cong., 2d Sess. 24, Reprinted in (1974) U.S. Code Cong. & Admin. News, pp. 7051, 7073). In light of our precedent, it is of no mom ent for purposes of Rule 8 0 1 ( d)(2)(E) that the Elbarasse and Ashqar documents were created before Hamas was designated as a terrorist organization if the statements were made

as part of a joi nt p l a n w ith the defendants, and as long as the other requirements of the rule are satisfied. The defendants argue t h a t Postal

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misread the legislative history of Rule 801(d) ( 2)(E), and they urge us to reject the so-called “lawful joint venture theory.” However, our circuit has embraced the theory in preced e nt that we may not ignore. See United States v. CastroGuevarra , 575 F.3d 550, 552 (5th Cir. 2009) (“[O]ne panel of this court may not overrule another panel’s earlier decision.”). Moreover, we are not alone in our construction of Rule 801(d)(2)(E), as our sister circuits have also held that statements made in furtherance of a l awful

common enterprise are admissible. See, e.g., United States v. Gewin , 471 F.3d 197, 201 (D.C. Cir. 2006) (holding that “the rule, based on concepts of agency and partnership law and applicable in both civil and criminal trials, ‘emb o di e s th e long-standing doctrine that when two or more individuals are acting in concert t o w ard a common goal, the out-of-court statements of one are . . . admi s s ib l e against the others, if made in furtherance of the common goal’”); United States

v . Layton , 855 F.2d 1388, 1400 (9th Cir. 1988) (“Rule 801(d)(2)(E) applies t o statements made during the course and in furtherance of any enterp ri s e, whether legal or i l l e g a l, in which the declarant and the defendant jointly participated.”), overruled on other grounds as recognized by Guam v. Ignacio , 10 F.3d 608, 612 n.2 (9th Cir. 1993); United States v. Regilio , 669 F.2d 1169, 1174 n.4 (7th Cir. 1981) (“The co-conspirator hear s a y e xception applies with equal force to joint ventures.”); see also 4 C H R I S T O P H E R B

. M U E L L E R & LA I R D C. KI R K PAT R I C K , F E D

. E V I D

. § 8:59 (3d ed.) (“[T]he exception can apply if people act t o g e t h e r by mutual understanding in pursuit of a common purpose . . . . The exception can apply even if the proponent doe s n o t show that the venture is unlawful . . . .”). As the Seventh Circuit has explained, “[c]onspiracy as an evidentiary rule differs from conspiracy as a crime. The crime of conspiracy comprehends much

more than just a joint venture or concerted action, whereas the evidentiary rule of con s p i r a c y i s founded on concepts of agency law.” United States v. Coe , 718

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F.2d 830, 835 (7th Cir. 1983). Just as coconspirators are gen e r a l l y considered
p a r t n ers in crime and therefore agents of each other, joint venturers may b e considered partners in the joint undertaking. See id. Indeed, Rule 801(d)(2)(E) has been rec o gn i z ed to apply not only in criminal cases but also in civil cases where “there may be no criminal conspiracy or unlawful actions involved.” Id. at 836 n.3. Under this rational e , the Government need not show that the defendant and the declarant were engaged in an illegal conspiracy but rather must show only “that there was a combination between them

. ” I d. at 835 (internal quotation marks and citation omitted). We therefore reaffirm our precedent that Rule 801(d)(2)(E) does not require that a statement be made in furtherance of a criminal undertaking in order to be admissible as non-hearsay. Turning to the application of the joint venture theory to the Elbarasse and As h qar documents, we conclude that a preponderance of the evidence proved that the documents were created as part of a c ommon enterprise, of which the defendants and declarants were member s . The documents were therefore admissible. The documents themselves outline the Palestine Committee’s activities and goals, and in some instances they specifically refer to the functions

o f H L F and the individual defendants in support of those goals. T h e Government’s theory of the case was that the defendants supported Hamas by coordinating activities of the Palestine Committe e a n d H LF. The documents themselves are consistent with this theory. We are satisfied that independent evidence also established the existence of a joint venture or combination among t h e declarants and the defendants to

s u pport Hamas through HLF and the zakat committees. For exam p l e , participants at the Philadelphia meeting discussed Hamas and its control of the zakat committees. The participants referenced the importance of HLF in the Committee’s goals, and they identified as “ours” various zakat committees to which HLF donated funds. The Government also introduced evidence of

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numerous financial transactions and personal contact between the defendants and Hamas leader Marzoo k , w h o was listed in the Elbarasse and Ashqar documents a s c h air m a n of the Palestine Committee. Marzook also had in his personal phone book the contact information for Baker, Elashi, El-Mezain, and Elbarasse. Further, Hamas leader Mishal s p o k e a t a meeting attended by B ak e r , Elashi, El-Mezain, and Ashqar about supporting Hamas. According t o Shorbagi, who was present, El-Mezain led a break-out group at that meeting to discuss the financial issue o f r a ising money. Moreover, Shorbagi specifically testified from personal knowledge that HLF was part of Hamas. The evidence also showed a rela t i o n s h ip between the defendants and Elbarasse and Ashqar. F o r e x a mple, Elbarasse shared a bank account with Hamas leader Marzook, f r om which $100,000 was paid to HLF in 1992. Elbarasse and Ashqar also attended the Philadelphia meeting. When a dispute

arose between HLF and Ashqar about the proceeds generated fro m a Hamas leader’s speaking appearances, Marzook and other Palestine Committee members intervened and directed that the proceeds be administered by HLF. We conclude that the evidence at trial was more than sufficient to demonstrate the existence of a joint enterprise to support Hamas through HLF and the zakat committees, as well a s c o n cert of action toward that common goal through the Palestine Committee. We also find that the E lbarasse and Ashqar documents

were made “in furtherance” of the common goal, as the documents outlined and facilita t e d t h e Committee’s objectives. See United States v. Snyder , 930 F.2d 1090, 1095 (5th Cir. 1991) (the “in furtherance” requirement is not to be applied too strictly and is satisfi e d if a statement “advances the ultimate objectives of the conspiracy”). In support of their argument against admissibility of the Elbarasse and Ashqar documents, the defendants rely on United States v. Al-Moayad , 545 F.3d 139, 172–76 (2d Cir. 2008), where the Second Circuit held that the district court

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erroneously admitted three pieces of evidence under Rule 801(d)(2)(E). In that
case, the defendant Al-Moayad was prosecuted for providing material aid and support to Hamas and Al-Qaeda. The evidence at issue was offered to show the defendant’s connection to terrorists and his predisposition to terrorist activity. It consisted of (1) an application form for admittance to a mujahidin tr a ining
camp that listed the defendant as the appli c a n t’s sponsor; (2) a video of a wedding hosted by the defendant where a Hamas leader gave a speech referring to a suicide bombing; and (3) the last will and testament of a mujahidin fighter whose address book included the defendant’s name. Id. The Second Circuit held that the application form, the video, and the will were not admiss ible as coconspirator statements because they provided evidence of only vague relationships rather than joint involvement in a conspiracy. Id. The court noted that there was no evidence the defendant knew the applicant who submitted the mujahidin form, that the wedding video showed only a “general tie[]” to Hamas, and that the last will and testament did not show any shared criminal activity between the defendant and the testator. Id. The defenda n t s argue that Al-Moayad is analogous to the instant case. We are not convinced. Unlike Al-Moayad , the evidence in this c a s e does show

a rela t ionship between the defendants and Elbarasse and Ashqar, as well as their connections to Hamas leaders. The d o c u ments further show shared activity by the defendants and the declarants in the Palestine Committee, and they in dicate that HLF was the principal fundraising apparatus for the Committee’s goal of supporting Hamas. The record here, unlike Al-Moayad , showed the defendants’ joint participation in a shared undertaking involving the Committee, and the documents were properly admitted under Rule 801(d)(2)(E). The defendants further complain that many of the Elbarasse and Ashqar d ocuments are anonymous, and therefore there could be no showing o f a n agreement between the declarants and the defendan t s. The failure of a

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document to identify the declarant is not fatal to a d m i ssibility under Rule 801(d)(2)(E), however, if the facts and circumstances surrounding the making of the statement indicate that the speaker is a member of the conspiracy or jo i n t venture. For instance, in Postal , we stated that even though the author of the ship’s logbook was unknown, the statements in the logbook were still admissible pursuant to Rule 801(d)(2)(E). Postal , 589 F.2d at 886 n.41. We reasoned that circumstantial evidence made it “inescapable” that the logbook belonged to the ship and that one or more of the ship’s crew made the statements. Id. We noted, for example, that the log was the “onl y s u c h book found,” its notations corresponded with charts that were also found on board, and the log’s final entry corresponded closely to the time and course of the ship that was recorded while the ship had been under surveillance. Id. We applied similar reasoning in United States v. Fierro , 38 F.3d 761 (5th Cir. 1994), where two of the defendants argued that dr u g l e d gers were improperly admitted as statements of co-conspirators under Rule 801(d)(2)(E) because the Government did not prove who authored the ledgers. We held that “identification of the declarant–such as the author of a drug ledger–is not always
necessary for the admission of a co-conspi r a t o r s t a t e ment.” Id. at 773. Other evidence in Fierro connected the defendants to the ledgers, i n c l u di ng the fact that bot h o f the defendants “lived in the house where the ledgers were found, and there was other evidence of their i nv o lv e ment in the cocaine conspiracy, i n c l u ding [the two defendants’] connections and activities with the oth e r defendants.” Id. ; cf. Davis v. Mobil Oil Exploration & Producing Se., Inc

. , 864 F.2d 1171, 1174 (5th Cir. 1989) (holding that anonymous state m e n t was admissible as a statement by a party’s agent under Rule 801(d)(2)(D), and noting that “a distri c t c o u rt should be presented with sufficient evidence to conclude that the person who is alleged to have made the damaging statement is in fact a party or an agent of that party”).

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Our conclusions in the above cases are consistent with those of our sister circuits, which have also held that ano nymous statements may be admissible under Rule 8 0 1 ( d) ( 2)(E) if sufficient evidence is presented to connect the declarant w i t h t he conspiracy at issue. For example, in United States v. Martinez , 430 F.3d 317 (6th Cir. 2 0 05), the defendant argued that the Government failed to prove “that the anonymous declarant was a member of the conspiracy.” Id. at 326. The Sixth Circuit held that “[a]n anonymous statement may be admissible under Rule 801(d)(2)(E) if circumstantial evidence permits a finding by a preponderance of the evidence that there was a conspiracy involving t he author and the defendant

. . . .” Id. The court stated that the e s s e n t i a l

r e qu irement is that “the government show that the unknown declarant was

more likely than not a conspirator.” Id. (internal quotation marks and citation omitted)

. I n a pplying this standard, the court reasoned that the Government h a d e s t ablished that an unsigned letter was more likely than not written by a member of the conspiracy, because “[t]he letter was found in a place connected to one of the conspirators and purports to be from someone knowledgeable about

an d i nvo lv e d i n the conspiracy

. . . .” Id. ; see also United States v. Smith , 223 F.3d 554, 570 (7th Cir. 2000) (holding that an anonymous list wa s a dmissible under Rule 801(d)(2)(E) because “[t]he details contained in ‘The List’ were such that it could only have been written by a member of the [stre e t gang] or by

someone sufficiently involved with the business to be int i m a t e l y familiar with it–in other words, by a co- conspirator”); United States v. Dynalectric Co. , 859 F.2d 1559, 1582 ( 1 1 t h C ir. 1988) (holding that statements made by an unidentifie d telephone caller were properly admitted under Rule 801(d)(2)(E) because “it is clear from the testimony and the context that the caller was associated” with members of the al l e g ed conspiracy); United States v. Zuniga-Perez , 69 F. App’x 906, 913 (10th Cir. 2003) (holding that the identity of the declaran t n e e d not be established as a predicate for Rule 801(d)(2)(E) “so

43 Case: 09-10560 Document: 00511687541 Page: 43 Date Filed: 12/07/2011No. 09-10560

l o ng as the district court determines that the declarant was a membe r o f a conspiracy with the defendant and that the statement was made in the course of and in furtherance of the conspiracy”); 4 C H R I S T O P H E R B. M U E L L E R & LA I R D C. KI R K PAT R I C K , F E D

. E V I D

. § 8:59 (3d ed.) (“[A]n inability to attribute the statement to any particular p erson does not necessarily get in the way” of admissibility under Rule 801(d) ( 2 ) (E) because “[c]ircumstantial proof that the
perso n m a king the statement was involved in the conspiracy can suffice to support use of the exception.”). As the above cases demonstr at e , th e def e n d ant s here “are wrong to suggest that it is necessary to know the precise identity of” the declarant s i n the Elbarasse and Ashqar documents. Smith , 223 F.3d at 570. We conclude that the circumstantial evidence i n th i s case made it “inescapable” that the declarants in the documents were joint venturers with the defendants in support of Hamas through the Palestine Committee. For example, as noted above, the participants at the Philadelphia meeting referred to various zakat committees, including Ramallah and ICS Hebron, as “ours.” The same language appears in Elbarasse exhibit 22, a letter addressed to Baker that also referred to the committees as “ours.” The lette r f

u r t h e r identified many of the same committee members whose names appeared in other evidence the Government introduced to establish the composition of the committees. Another of the do cu m e nt s , E lb ar a s s e Search 15, was a “Resolution relating to the Occupied Land Fund.” The resolution was from the head of the “Central Committee” and reported on issues d ecided at a board of directors meeting, including the salaries for Baker, Elashi, and El-Mezain. The board of directors meeting referenced in the document was also corroborated by records later found at HLF. The similarity between the Elbarasse and Ashqar documents and other independent evidence is striking and strongly supports the conclusion that the declarants were involved in the same undertaking as the defendants.

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The documents were also found in the homes of Elbaras s e a n d Ashqar, whose relationship to t h e d e fendants and the Palestine Committee was established by the evidence. We also think that many of the documents–which included internal records such ann u al reports, by-laws, organizational charts, and meeting agendas–were of a kind unlikely to be found in the hands of persons outside the enterprise. The documents discussed internal activities, including the relationship and goals of the participants in the endeavor, HLF’s financial matters, and even the change in the name of HLF from the Occupied Land Fund. A declarant who was not involved with activities of the defend a n t s and HLF would be unlikely to know ab out these issues. We are therefore satisfied that the documents were drafted by insiders participating in the venture and were designed to be in furtherance of the common goals of the Palestine Committee. The documents were therefore admissible under Rule 801(d)(2)(E). The defendants also suggest in their brief that the Elbarasse and Ashqar documents should not have been admitted because there was no evidence that they had ever seen the documents or knew of their contents. In order to admit

a co-conspirator’s statement u n d e r Rule 801(d)(2)(E), however, it is not

necessa ry that another co-conspirator know about the statement. This is consistent with the principle that a co-conspirator’s statements are admissible under a general agency rationale i n s ofar as one conspirator may be held responsible for the statemen t s of another conspirator in furtherance of that conspiracy whether or not he was present when the statement was made. See Lutwak v. United States , 344 U.S. 604, 617 (195 3 ) (“ D e c larations of one conspirator may be used against the other conspirator not present on the theory that the declarant is the agent of the other, and t h e admissions of one are admissible against both under a standard exception to the hearsay rule

a p p licable to the statement of a party.”) (emphasis added). Even assum i n g arguendo that the defendants here were unaware of the contents of the

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Elbarrasse a n d Ashqar documents, which may be doubtful given that certain documents refer to s o m e of the defendants by name, admissibility under Rule 801(d)(2)(E) was not precluded. See 5-801 W E I N S T E I N ’ S F E D

. E V I D

. § 801.34 (“A defendant need not have been aware o f particular transactions within the conspiracy for statements in furtherance of those transactions to be admissible against him or her.”). In sum, we conclude that the lawful joint venture theory is a viable theory of admissibility under Rule 801(d)(2)(E) and the anonymit y o f the documents here did not bar their admission because the evidence was sufficient to show the documents were created as part of a joint undertaking between the declarants and the defendants. The district court did not abuse its discretion in admitting the Elbarasse and Ashqar documents pursuant to Rule 801(d)(2)(E). C. Prejudicial evidence under Rule 403 The defendants next contend that the district court erred by ad m i t t i ng evidence that they argue was unfairly more prejudicial than probative. They specifically challenge evidence related to Hamas violence, including: testimony about Hamas suicide bombings, inclu din g an exp l an atio n of how suicide bombers choose their targets, carry out their plan s , a n d prepare bombs to make them

more lethal; testimony regarding Hamas’s killing of c o l laborators with Israel; videotapes of demonstrators destroying American flags; and viole nt i m a ges of the aftermath o f H a m a s suicide bombings found in temporary files on HLF

c omputers. Other evidence that they argue was improper and prejudi c i a l included: videos of Palestinian children playing the role of terrorists in s c h o o l ceremonies; Avi’s testimony about PA parliamentary elections and the political maneuverings of Hamas ; a video found in HLF’s possession depicting the opening of a library in the West Bank but also containing an allegedly unrelated fragment showing the burning of an Americ an flag; several questions about Iraq, Sadam Hussein, and the Muslim Legal Defense Fund; videos, photographs, and

46 Case: 09-10560 Document: 00511687541 Page: 46 Date Filed: 12/07/2011No. 09-10560

posters of suicide bombers that the Israeli military seized from West Bank zakat committees after HLF had closed; and the Elbarasse and Ashqar documents. Rule 403 of the Federal Rules of Evide n c e provides that “[a]lthough relevant, evidence may be excluded if its probative valu e i s s ubstantially outweighed by the danger of unfair prejudice

. . . .” The scope of Rule 403 is

narrow. Because virtually all evidence is prejudicial, the danger of unfair prejudice must substantially outweigh the probative valu e o f the evidence to

w a rrant exclusion. United States v. Fields , 483 F.3d 313, 354 (5th Cir. 200 7)

. Accordingly, our review is especially deferential to the district court, and th e appellant must show “a clear abuse of discretion.” United States v. Curtis , 635 F.3d 704, 716 (5th Cir. 2011) (internal quotation marks and citatio n o m i t t e d). We have previously cautioned that “[r]a r e i s t h e appellant who can make that showing,” and that “district cour t s s h o u l d exclude evidence under Rule 403 in
very few circumstances.” Id. We conclude that the defendants have not shown such circumstances in the instant case. Altho u gh th e def

e n d ant s c orrectly observe that they were not charged with planning or carrying o u t terrorist activity or with directly supporting such activity, evidence of Hamas viole n c e , s o m e of which was found in the zakat committees or on HLF computers, served the probative purpose of providi ng

con t ext and explanation in the case, and to rebut defensive theories that the defendants intended t o support only charitable endeavors. For example, testimony about suicide bombings from Dr. Levitt came as explanation of Hamas’s operations, specifically showing how Hamas operates not only a social wing bu t a l s o a m i litary wing that carries out such bomb attacks. This was relevant to show that HLF’s purportedly charitab l e d onations also indirectly aided Hamas’s violent activities. See Holder v. Humanitarian Law Project , 130 9

Sim ilarly, Dr

. Levitt als o tes tif ied that Ha mas ope rat es sc hools as par t of i t s s o cial 9 wi ng, wh ere it teac hes H ama s ide ology. To a ss istt he jury i n e valuati ng this tes tim ony, the 47 Case: 09-10560 Document: 00511687541 Page: 47 Date Filed: 12/07/2011No. 09-10560

S. Ct. 2705, 2725– 2 6 & n.6 (2010) (recognizing that “[m]oney is fungible” and that “material support of a terrorist group’s lawful activities facilitates the group’s ability to attract ‘funds,’ ‘financing,’ and ‘goods’ that will fu r t h e r i ts terrorist acts”). Avi also testified ab o u t t w o suicide bombings, testimony that the defendants challenge as improper under Rule 403. Avi explained that the first attack, at a discotheque, was carried out by a p e r s o n whose photograph was found at one of the zakat committees. This testimony therefor e c o n n e cted the committee with Hamas activi ty. The second suicide attack about which Avi testified occurred at a hotel and precipitated the Israeli military’s r a i d on the zakat committees. This testimony se rv ed two functions. First, it provided helpful context by explaining the reason for the Israeli military operation, which

was the source of much of the evidence introduced at trial. Se e, e . g., United States v. Rodriguez , 525 F.3d 85, 99 (1st Cir. 2008) (holding, under plain error

revi ew , th at t e s ti m ony about defendant’s fugitive status provided help f ul c o nt ext t o t h e jury and clarified reasons for a search and was not unduly prejudi c i a l under Rule 403). But second, and mor e important, the testimony came on re-direct examination and rebutted the defense’s questioning on cross-examination. The defense elicited from Avi information about the military operation and the fact

Go vernm ent pr es ente d a video sho wi ng Pales tini an children pr ete ndin g to be sui cid e bom bers at a ki nder garte n cer em ony. The def enda nts argue that the video wa s inad mi ss ible unde r both Rule 403 and Rule 703, but we find that in add itio n to expla ining Levitt ’s tes tim ony, the video pr ovide d rebu tta l evide nce. The def ens e sp ent a good dea l of tim e at tri al dis cus sin g H LF’s char itab le sup por t of sc hools ands tud ents by pr ovidi ng back pac ks and sc hool sup pli es . Dr

. Levitt tes tif

ied that sc hool sup pli es help build goodwi ll and that the Ha mas sc hools als o foc us on pol itic al ide ology. Hi s tes tim ony, along wi th t h e video , pr ovide d a conne cti on betw een Ha mas and sc hool child ren and rebu tte d the def ens e’s ef

f o rts

. We dis agree wi th the def enda nts that the pr obat ive value of the video in ass i s t i n g the jury to unde rs tand Dr

. Levitt ’s tes tim ony wa s sub st antia lly outw eighed by its pr ejudi cial eff ect

. See F E D

. R

. E VID

. 403, 703

. 48 Case: 09-10560 Document: 00511687541 Page: 48 Date Filed: 12/07/2011No. 09-10560

t hat Israeli military clashes with civilians in Jenin had resulted in civilian casualties. The defense emphasized that the USAID group provided humanitarian aid to the Palestinians as a result of those clashes. The defense thereb y p a i n t e d the Israelis as unprovoked aggressors, or, at best, the more culpable party in the dispute. On re-direct, therefore, it was permissible for Avi to explain that the military operation was a result of the hotel bombing and the Israeli government’s decision to targe t t h e t errorist cells responsible for the bombing. Any prejudicial effect of this testimony was slight in comparison with the probative goal of rebutting the cross-examination. See Uni ted States v. Walker , 613 F.2d 1349, 1353 n.5 (5th Cir. 1980) (“Because the prejudicial impact of the evidence elicited by the government was slight, the probative value of the re-dire c t examination in rebutting a possible defense clearly outweighs any prejudicial impact. Accordingly, the testim o ny w a s p roperly admitted.”); see also United States v. Touloumis , 771 F.2d 235, 241 (7th Cir. 1985) (“[A] party cannot be permitted on the one hand to introduce evidence that appears favorable to his argument and then complain, after the circumstances are fu l l y d e veloped, because the evidence becomes detrimental to his cause.”). O t her evidence challenged by the defendants also came on re-direct examination. For example, Shorbagi testified that he did not want to return to Hamas-controlled Gaza because he feared being killed. The d e f e ndants argue that this testimony wa s p rejudicial, but the defense brought out on crossexami n a t i o n the fact that the Government had promised to help Shorbagi remain in the United States after he is released fr o m p ri son. Shorbagi’s fear therefore helped explain his testimony about remaining in this country. Still other evidence rebutted the defendants’ defense that HLF and the zakat committees were charitable organizations in d e p e ndent of Hamas. Evidence which tends to rebut a defendant’s claim of innocent action is unlikely to be unduly prejudicial. See United States v. Duncan , 919 F.2d 981, 987–88 (5th

49 Case: 09-10560 Document: 00511687541 Page: 49 Date Filed: 12/07/2011No. 09-10560

C ir . 1990) (holding in prosecution for mail fraud that testimony of f o r g e d signature on disability statement, which tended to rebut the claim that defendants had innocently filed insurance claims for genuine medical reasons,

was not unduly prejudicial). Here, we agree with the Government that evidence seized from HLF and the zaka t committees, including images of violence and videos glorifying Hamas and de p i c t i n g Hamas leaders, was probative of the motive or intent of the committees and H L F to support Hamas. See United States v. Hammoud , 381 F.3d 316, 342 (4th Cir. 2004) (holding that videotapes found in defendant’s apartme nt dep icting violence and anti-American sentiment

were not unduly prejudicial under Rule 403 in a prosecution for providing

m a t e rial support for a terrorist organization because they were probativ e o f defendant’s knowledge, “p r ovided evidence of [his] motive in raising funds for Hizballah[,] and tended to contradict [his] claim that he sympathized only with the humanitarian goa l s of the organization”), overruled on other grounds by Hammoud v. United States , 543 U.S. 1097 (2005). The defend a n t s make much of the fact that images seized from HLF computers were not downloaded but rather were found in temporary files that

are automatically save d b y t h e c o mputer when a web page is browsed. This objection goes t o t h e weight of the evidence rather than its admissibility. Cf. United States v. Garcia Abrego , 141 F.3d 142, 176 (5th Cir. 1998) (obje c t i on under Rule 403 that e vi d e n c e of violent acts committed in furtherance of conspiracy consisted of mere out-of-court statements rather than direct evidence went to the weight of the evidence and not a d m i s s ibility). The presence of images on the computer indicates that someone at HLF browsed a page where the images were located. If the images was pro-Hamas or approved of violence,

one logical inference is that HLF, which was a separate defendant, had the same

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view. The same is true of Hamas-related materials found in the zakat 1 0 committees. The presence of the material at the c o m m i t t e e s suggests a connection between the committees and Hamas and permits an inference that the zakat committees supported Hamas. 1 1 The defendants rely on United States v. Al-Moayad , 545 F.3d 139 (2d Cir. 2008), for their argument that the evidence of Hamas violence was inadmissible here. In Al-Moayad , the Second Circuit held that the district court improperly admitted testimony from a victim of a Hamas bomb attack on a bus, as well as images of the aftermath of the attack, where the defendants were charged with conspiracy and attempting to provide material support to Hamas but were not charged with planning or carrying out that attack. Id. at 160–61. Th e Government in that case argued that the evidence was re l e vant to show the defendants’ knowledge that Hamas e n g a g e d in terrorist activity. Id. at 160. The court held, however, that such probative value was diminished because the defendants never denied such knowledge and they had offered to sti p u l ate to that fact. Id. Therefore, the evidence served very little probative purpose. The instant case is different from Al-Moayad because evidence of Hamas violence found on the premises of HLF or in the zakat comm i t t e e s tended to rebut the

The def enda nts als o cont end that the video tap e wi th a fr agme nt at t h e beginnin g 1 0 sho wi ng dem ons tra tor s burni ng Ame ric an flags wa s pr ejudi cial beca use it sho we d me rely that a video grap her hire d by HLF rec ord ed over a tap e of the dem ons tra tio n. We are not per sua ded

. The def

enda nts poi nt to no evide nce es tabl ish ing that an unnam ed video grap her wa s res pons ible for the tap e’s cont ents rat her than HLF. The tes tim ony at tri al sho we d that the tap e wa s pr es ente d exact ly as it wa s fou nd amo ng HLF rec ord s and doc ume nts , inclu ding an att ache d note that req u e st ed tw o cop ies of the video and that st ated , “Ther e is a dem ons tra tio n at the beginnin g. I don’ t wa nt it. ” The jury coul d det erm ine how muc h we ight the noteandt he videof ragm ent sho uld rec eive. Sim ilarly, the def

enda nts com plai n about ques tio ns elic itin g the fac t that so me of the 1 1 orp hans and fam ilies that HLF sup por ted had se par atel y rec eived s u p p o r t fr om Iraq or Sad dam Hu ss ein. This info rm atio n wa s cont ained wi thin HLF’ s ow n rec ord s, how ever. It wa s als o cons ist ent wi th the Go vernm ent’ s theo ry that HLF’ s sup port w a s i n t e n d e d to aid the fam ilies of

m art yrs . 51 Case: 09-10560 Document: 00511687541 Page: 51 Date Filed: 12/07/2011No. 09-10560

d e fendants’ denial that they supported Hamas and that Hamas controll e d th e committees. Additionally, other evidence of violence provi d e d m eaningful context a n d explanation. To the extent it demonstrated the defendants’ knowledg e o f Hamas and support for it, or Hamas’s connection to the zakat committees, the evidence had probative value and was not unduly prejudicial. From our review of the entire record, we are convinced that t h e di strict court did not clearly abuse its discretion under Rule 403 by refusing to exclude the challenged evidence. Because this was a case about supporting terrorists, it is inescapable, we believe, that there would be some evidence about violence and terrorist activity. It cannot be denied that the evidence at i s s ue was unfavorable to the def e n d a n ts, but we cannot conclude that it was unduly prejudicial. See, e.g., Brazos River Auth. v. GE Ionic s, I n c . , 469 F.3d 416, 427 (5th Cir. 2006) (“‘Unfair prejudice’ as used in rule 403 is not to be equated with testimony that is merely adverse to the opposing party.” ). “Here was no parade of horrors” under all the circumstances. United States v. McRae , 593 F.2d 700, 707 (5th Cir. 1979). Given the significant deference this court shows to the district court in Ru l e 4 0 3 matters, the district court’s rulings will not be disturbed. See Fields , 483 F.3d at 354 (“The governing law and our limited standard of review bear emphasis.”). D. Expert and lay opinion testimony Next, the defendants ar gue that five witnesses were allowed to provide either improper lay opinion or improper expert opinion testimony under Rules 701 and 702 of the Federal Rules of Evidence. W e r e vi e w the district court’s rulings on the admission of lay and expert testimony for an abuse of discretion. United States v. Griffin , 324 F.3d 330, 347 (5th Cir. 200 3).

1. John McBrien John McBrien was the associate director of OFAC. He testified about the Treasury Department’s f ailure to designate the zakat committees as terrorist

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organizations. He also opined about whether one may donate to the committees if they are not designated. The defendants argue that McBrien was not noticed

as an expert witness, that his testimony was improper lay opinion, and that he gave an improper legal conclusion. We agree with the defendants. “Under F E D

. R. E V I D

. 7 0 1 , a l ay opinion must be based on personal perception, must be one that a normal person woul d f o rm from those perceptions, and must be helpful to the jury.” United States v. Riddle , 103 F.3d 423, 428 (5th Cir. 1997) (internal quotation marks and citation omitted). A lay witness may not give an opinion that requires “scientific, technica l , or other

s pecialized knowledge within the scope of Rule 702.” F E D

. R. E V I D

. 7 0 1

. I t i s also generally prohibited for a lay witness to interpret statutes and to give legal opinion s . See Griffin , 324 F.3d at 347–48. In Riddle , we held that it was improper for a lay witness in a bank fraud prosecution to explain provisions of the banking regulations, to express his opinion on “prudent” banking practices, and to “draw on his specialized knowledge as a bank examiner” i n giving his opinions about the defendant’s actions. Riddle , 103 F.3d at 428–29; see also Huff

v. United States , 273 F.2d 56, 61 (5th Cir. 1959) (where issu e was whether jewelry was exempt from duty, a customs inspector was improperly allowed to t e s tify about his own construction of the customs laws, rules, and regulati o n s , and to opine that the jewelry found in defendant’s possession was commercial in nature rather than a personal effect)

. In the instant case, McBrien explaine d t h a t the Treasury Department typically does not designate every sub-group or component of a designated terrorist organization because it focuses its limited resources on designating the key parts of the organization. He also read from Treasury regulations. He then testified that a pers o n donating money must ensure that the donation is not going to a sub-entity or front for the designa t e d o r ganization. He answered a hypothetical question about a specific group with Hamas ties, known as the al53 Case: 09-10560 Document: 00511687541 Page: 53 Date Filed: 12/07/2011No. 09-10560

Salah Society, explaining that if one lacked knowledge about the H a mas connection, a donation to al-Salah would not be illegal but that if one did have knowledge, donating to the group would be prohibited. McBrien’s testimony was helpful to the jury and was relevant because it addressed the defendants’ complaints that none of the zakat committees to which HLF provided funds was designated as a terrorist organization. But McBrien’s testimony about the Treasury Department’s practice in designating

or not designating sub-groups of terrorist organizations is not within the realm of an ordinary lay witness. The Government argues that McBrien’s testimony

was based on his personal knowledge and served to rebut the defense theory that because the zakat committees were no t o n t h e designation list they were not controlled by Hamas. McBrien’s opinions and explanations were the product of

s p e cialized knowledge, however. It is true that lay witnesses may sometimes give opinions that require specialized knowledge, but the witness must draw “strai ghtf

orw ar d c o nclu s io n s f

ro m ob s ervatio n s informed by his own experience.” Riddle , 103 F.3d at 429. Rather than make straightforward conclusions from his observations, McBrien explained the procedures of OFAC. We are also troubled by McBrien’s testimony about the “test” for whether

a donation may be made to an entity that is not on the designation list. McBrien

ex p l a i n ed, in part, that the “basic test is, is the entity or the individual owned

or controlled by or ac t i n g f o r or on behalf of the designated entity or the designated organiza t i o n . . . . [I]t means are you acting as an intermediary for them, are you acting as their front organizati o n , a r e you their straw man, are yo u t h e ir go between. ” This testimony stated a legal test and was improper

u n der our precedent. See Griffin , 324 F.3d at 347–48 (improper to a l l o w Government witness to read f r o m state statutes and to give her own interpretation of the law); Riddle, 103 F.3 d a t 428–29 (explanation of banking regulations held to be improper lay testimony).

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Nevertheless, any error that occurred in the admissio n o f M cBrien’s testimony was harmless b e c a use the testimony was cumulative to other testimony before the jury. See Griffin , 324 F.3d at 348. D r . L e vi tt, a Government expert witness, also testified that the Treasury Department does not include every component of a terrorist organization on the designation list because doing so would be impossib l e . L e vitt explained that the omission of a sub-group from the designation list does not mean that the group is not part of Hamas or that Ameri can citizens may donate money to the sub-group. Levitt further explained that the T r easury Department does not provide so-called “white lists” of a p p r o ved organizations. Thus, McBrien’s testimony was cumulative to Levitt’s testimony. See i d

. (“Where objected to testimony is cumulat ive of other testimony that has not been objected to, the error that occurred is harmless.”). 1 2 Furt h ermore, although McBrien gave an improper legal opinion and provided testimony based on specialized knowledge, he did not express any opinions as to the defendants’ specific conduct in the case. This is unlike other instances where we have f o u n d error in the admission of improper expert testimony. See, e.g., Riddle , 103 F.3d at 429 (lay witness gave improper opinion tha t b ank operated “imprudently,” which required witness’s expert understanding of the banking industry); Huff , 273 F.2d at 61 (lay witness opined

on specific legal nature of the goods at is s u e)

. W e think that fact plus the cumulative na t u r e o f the evidence militates toward the harmless error conclusion. We therefore hold that McBrien’s testimony was harmless and was not reversible error.

The def enda nts objec ted at tri al only to the ques tio n ab out wh ethe r the fac t that a 1 2 zak at com mi tte e wa s not des ignate d as a ter ror ist organi zatio n me ant that Ame ric an cit izens coul d dona te to the com mi tte e; how ever, they have not argued on app eal that Levitt , wh o wa s an e xper t wi tnes s, c ouldno t ans we r the ques tio n. 55 Case: 09-10560 Document: 00511687541 Page: 55 Date Filed: 12/07/2011No. 09-10560 2. FBI Agents Lara Burns and Robert Miranda The defendants argue that FBI Agents Lara Burns and Robert Miranda, who were not noticed as expert witnesses, testified beyond their capacity as lay witnesses and gave improper expert opinions. The defendants object to specific testimony from Agent Burns that: (1) defined the term “Islamist” as used by Baker in the recording of the Philadelphia meeting; (2) explained why it was not relevant for her investigation whether the defendants r e ceived a salary from HLF, and why it w as necessary to examine HLF’s transactions before Hamas

was designated as a terrori s t o r g anization; (3) connected Hamas to a flag burning demonstration seen in a videotape seized from HLF records; (4) identified the speaker on an audio tape as a leader in the Muslim Brotherhood; (5) e x p l ained the difference between “inside” and “outside” the Palestinian territories as used in some exhibits; (6) gave her understanding of why participants in the Philadelphia meeting continued to operate in America; and (6) identified various individuals as leaders of the zakat c o m m i ttees. The defendants furth er c o m p l ain ab o ut Age nt Mir an d a’ s te s timony that (1) explained his understanding of r e c o r ded telephone calls between Baker and Baker’s brother, and (2) stated that Baker’s brother used a Hamas n a m e . T he defendant s c o n t e n d that the above testimony was not based on the witnesses’ perception, was not helpful to the jury, and required specialized knowledge. We conclude that no reversible error occurred. We agree that som e of the facts presented by the agents would not be known to an average lay person. The district court did not err by admitting the testimony, however, because the agents’ opinions were limited to their personal perceptions from their investigation of this case. See United States v. McMillan , 600 F.3d 434, 456 (5th Cir. 2010). By explaining the meaning of terms as used in the conversations and documents, as well as the r e l a tionships between the people they were investigating, the agents provided the jury with relevant

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factual information about the i nvestigation. See id. (lay witnesses who investigated an HMO’s financial health were permitt e d to testify about accounting r u l e s , define certain terms, and report impressions of HMO’s accounti n g records because testimony “provided factual information about the circumstances of the case” and concerned the witnesses’ i nvestigation and “perceptions in the case”). Testimony need not be excluded as improp e r l a y opinion, even if some specialized knowledge on the part of the agents was required, if it was based on first-hand observations in a specific investigation. For exa mple, in United States

v. Miranda , 248 F.3d 434, 441 (5th Cir. 2001), we held that an FBI agent could testify under Rule 701 about the meaning and use of certain code words in the drug trad e . We emphasized that the agent’s “extensive participation in the investigation of this conspiracy” allowed the agent to “form opinions” about the

c o d e w ords “based on his personal perceptions.” Id. (emphasis added)

. Similarly, in United States v. Rollins , 544 F.3d 820, 831–32 (7th Cir. 2008), the Seventh Circuit fou n d n o error in a law enforcement officer’s “impression” testimony about recorded telephone calls where it was “based on his first-hand perception of the intercepted ph o ne calls

. . . as well as his personal, extensive experience with this particular drug investigation,” rather than on his law enforcement experie n ce as a whole. The officer was permitted to testify about his familiarity with the voices in the calls and about the meaning that the callers gave to certain words and terms. Id. ; see also United States v. Jackson , 549 F.3d 963, 975 (5th Cir. 2008) ( a witness may testify “as a l ay w i t n e s s drawing from his ‘past e x p e ri ences formed from firsthand observation’ as an investigative agent”). Agents Burns and Miranda were extensively involved in the investigation of HLF, and we conclude that their testimony was either descriptive or based on their participation in, and understanding of, the events in this case. See United

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States v. Yanez Sosa , 513 F.3d 194, 200 (5th Cir. 2008) (a law enforcement officer does not provide expert testimony if it is “merely descriptive,” or if it is based on “common sense or the officer’s past experience formed from firsthand observation”). For example, Agent Burns testified that her i dentification of certain individuals as leaders in the zakat committees wa s based on other records reviewed in the investigation. Agent Miranda interpreted a phone call between the Baker brothers as referring to Hamas leader Khalid Mishal because of other evidence present in the investigation. The opinions were not based on 1 3 the agents’ training and experience as law enforcement officers in general. See Rollins , 544 F.3d at 831–32. The defendants also overstate the effect of the agents’ testimony in several instances. For example, they complain that Agent Burns “opined that the flagburning demonstration” seen in the video found among HLF’s records “involved Hamas.” Act u a lly, Agent Burns testified that the headbands worn by the demonstrators in the video had also been present in other videos that were associated with Hamas. To the extent that this was an improper expert opinion

on the headbands, which we doubt, it was cumulative of other testimony and was therefore harmless. See Griffin , 324 F.3d at 348; cf. United States v. Hall , 500 F.3d 439, 444 (5th Cir. 2007) (erroneous introduction of cumulative evidence was harmless error). Dr. Levitt and Avi both testified that the h e adbands were associated with Ham a s . S i milarly, Agent Burns’ explanation of the terms

“inside” and “outside” the Palestinian territories was cumulative of similar

In the c all at iss ue, Bake r’s brot her ref err ed to so me one beco mi ng “s ick” sho rtl y 1 3 bef ore the call , and def

enda nt Bake r des cribed sub se quent ly sp eak ing to that individual ’s fat her. Mir anda tes tif ied that at the tim e of the call ther e had been an ass ass inati on att em pt on Mis hal, and the evide nce sho we d that Bake r had then phon ed Mis hal’s fat her. Mir anda’ s inte rp ret atio n of the call as ref err ing to Mis hal wa s ther efo r e a s t r a ightf orw ard conc lus ion bas ed on his ob se rvati ons int he cas e. See Ridd le , 103 F.3dat429

. 58 Case: 09-10560 Document: 00511687541 Page: 58 Date Filed: 12/07/2011No. 09-10560

testimony from Dr. Levitt. We conclude that the district court did not abuse its discretion by admitting the testimony of Agents Burns and Miranda. 3. Matthew Levitt As noted above, Levitt was the Government’s expert witness on Hamas, and he testified twice at trial. First, he gave an overview of the rise of Hamas and the role that Hamas’s social wing played in the accomplishment of its goals. That testimony has not been challenged. Second, the Government re-called Levitt to provide testimony about evidence that had a lready been admitted through other witnesses. The evidence had shown telephone calls and financial transactions between the defendants and Hamas leaders bet w e e n 1 9 89 and 1993. It had also shown the presence of the defendants’ names in the telephone book of Hamas leader Marzook. Levitt was re-called to testify about the relative inaccessibility of the Hamas leadership to the general public, which highlighted the significance of this evidence. For example, Levitt testified that the presence of the defendants’ names in Marzook’s book was “significant” because “[t]his is personal and direct evidence of a relationship.” He also testified that someone calling the public number for Hamas was “not likely to get the senior leaders of an organization, any organization, Hamas or some other organization.” He further gave the opinion that “[t]he fact that there are connections with so many Hamas leaders is not coincidental, cannot be coincidental.” The defendants argue that Levitt’s testimony about the significance of the contacts between them and Hamas prior to Hamas’s designation as a terrorist organization was improper expert testimony under Rule 702 because the jury

was capable of determining for itself what inferences to draw from the evidence. The Government argues that Levitt’s testimony was necessa ry i n order to prevent the jury from assuming that Hamas leaders were available to anyone,

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or that those leaders engaged in a wide range of arms-length business deals with third-parties. We find no reversible error. First, the evidence refuted specific testimony elicited by the defense on

cro s s - ex a min atio n . D uring its case in chief, the Government intro duc e d evi de nc e that in 1995, following the detention of Hamas leader Marzook by U.S. authorities, Hamas ha d sent an arguably ominous letter to United States Senator Orrin Hatch. On cross-examination of the senator’s aide, counsel for ElMezain pointed out that the letter contain e d a p ub lic a d dre s s , telephone number, and facsimile number for Hamas. Counsel then asked the witness to agree that “if a person wanted to contact Hamas they c o u l d call that phone number.” Levitt’s testimony rebutted the defense suggestion that Hamas leaders could be readily contacted. Second, even assuming arguendo that Levitt’s testimony was unnecessary, it likely did not add to anything that the jury a l r e a dy knew. It

seems to us that a reasonable juror was more likely than not able to assume that Hamas le a d e rs would tend to limit their contacts and transactions to trusted
persons who supported Hamas. Therefore, even if an error occurred, which we do not find, we are convinced that the challenged testimony did not affect the verdict. See United States v. Lowery , 135 F.3d 957, 959 ( 5 t h C i r . 1998) (“A nonconstitutional trial error is harmless unless it ‘had substantial and injurious effect or influence in determ i n i n g t he jury’s verdict.’”) (quoting Kotteakos v. United States , 328 U.S. 750, 776 (1946)).

4. Steven Simon Steven Simon was a former staff member of the National Security Council under President Clinton, but he was not noticed as an expert and did not testify under Rule 702. The defendants challenge testimony he gave about the dangers posed by Hamas violence to the United States’ strategic interests in the Middle East and to American support of the Oslo peace accords. Simon testified that the

vi o l e n ce interferes with the peace process and affects the United States’ vita l

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interests in maintaining stability in the region an d e a s ing Arab resentment toward America. At one point, when asked why the United States should care about Hamas and other terrorist organizations, Simon testified t h a t “to the extent that the United States can remove one cause of resentment against America, we reduce the threat against the United States correspondingly. It is hard to do, but it is very important work.” Th e def e n d ant s argue that Simon’s opinion that Hamas violence threatens American interests was irrelevant and improperly appealed to the jurors’ fears that support for Hamas could lead to more 9/11-style attacks o n t h e U nited States. The G o v e r n m e nt argues that Simon’s testimony provided relevant context for the case and that it was not unfairly prejudicial for Simon to explain that one reason for U. S

. s u p p o r t of the peace process is to remove a source of Arab resentment and thereby reduce the threat of future violence. We agree with the defendants that S i m o n ’ s testimony was not relevant and should have been excluded. The Government was required to prove that the defendants provided material support to Hamas, and it therefore had to show a connection between Hamas and the defendants. The reason why the American Government wants p e ace in the Middle East, and whether terrorist violence disrupts the peace pro c e s s , does little to establish that connection. Nevertheless, any error was harmless. Simon’s direct testimony was not extensive, comprising only fifteen pages out of several thousand pages of the trial transcript. In a trial lasting approximately six weeks, Simon’s momentary testimony w a s f leeting. The testimony also provided the j u ry w i th the unremarkable lesson that the United States has a vital interest in Middle Eastern oil, and therefore it is in the U.S. interests to avoid Arab resentment and to keep the region free from violence and instabilit y . T h e defendants’ argument that the testimony was a blatant appeal to jurors’ fears is overstated when the testimony is read in full.

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Moreover, much of Simon’s testimony is cumulative of other evidence. The M i ddle Eastern peace process and the Oslo Accords, the involvement of President C l i nton, the opposition by Hamas, and the threat to the American economy, foreign policy, and national security, were all evident from other testimonial and documentary evidence, such as the testim o ny of Levitt and Presidential Executive Order Number 12947. To the extent that admission of Simon’s testimony was improper under Rul e 7 01, it was therefore harmless. See, e.g., Griffin , 324 F.3d at 348. E. Letter rogatory The d e f endants next challenge the district court’s failure to grant their request for a letter roga t o ry t o the government of Israel. A federal court may issue a letter rogatory, also known as a letter of request, to a court in a foreign country seeking assistance in the production of evidence located in the foreign country. See 28 U.S.C. 1 7 8 1 (b ) ( 2 ) ; see also United States v. Reagan , 453 F.2d 165, 171–72 (6th Cir. 1971). The letter rogatory process “has been described as ‘complicated, dilatory, and expensive.’” United States v. Rosen , 240 F.R.D. 204, 215 (E.D. Va. 2007) (quoting Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court , 482 U.S. 522, 531 (1987)). The decision to issue a letter rogatory is therefore entrusted to the sound discretion of the district court, and we review such decisions only for an abuse of discretion. United States v. Liner , 435 F.3d 920, 924 (8th Cir. 2006). The defendants sought a letter rogatory to the appropri ate Israeli authority five months before trial in order to review approximately 2000 boxes of material seized by the Israeli military from the zakat committees. The defendants sought this access because they believed that Avi had cherry-picked pro-Hamas evidence from the seized material to form his opinions about the committees. They therefore wanted to search for exculpatory eviden ce. The district court apparently overlooked the pendency o f the request and never
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formally ruled on the defendants’ motion. During the course of trial, however, the district court indicated that authorizing any further inquiry into the seized materials would be a fishing expedition. We do not think the court’s assessment was an abuse of discretion. The issuance of a letter rogatory is a discovery issue. We will not order a

new trial based on alleged discovery violations unless the defendant shows that a denial of access to evidenc e was prejudicial to his substantial rights. United States v. Dukes , 139 F.3d 469, 476 (5th Cir. 1998). This requires “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.

. . . [A] reasonable probability is shown where the nondisclosure could reasonably be taken to put the whole case in such

a different light as to undermine confidence in the jury verdict.” United States

v. Webster , 162 F.3d 308, 336 (5th Cir. 1998) (intern a l quotation marks and citation omitted). The defendants believe that non-Hamas materials, such a s do cu m e nt s an d posters related to the Fatah party or pictures of Yasser Arafat, may have been present in the zakat committees, and if so, the material would have undermined Avi’s opinion that the committees were controlled by Hamas. In a footnote, the defendants suggest that such material existed because defense w itness Ed Abbington testified that he had visited zakat committees in the West Bank and had seen a mixture of Hamas and Fatah posters. The defendants’ argument is unpersuasive. The record shows that the Government turned over to the defense twenty volumes of material that Avi used to form his expert opinions. In testimony that the district court credited, Avi testified that he produced all the seized material that was relevant t o t h e z a k at committees, regardless whether or not it was favorable to the Government. The defendants’ hope that combing t h r o u gh all 2000 boxes of the seized material might have produced exculpatory evidence is

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purely speculative. See Liner , 435 F.3d at 924 (aff i r m i n g denial of letter rogatory to depose a witness where defendant offered no evidence that witness’s testimony would be material); see also United States v. Marshall , 526 F.2d 1349, 1355 (9th Cir. 1975) (holding that district co u r t di d not abuse its discretion in denying massive discovery request b y defendant claiming prosecutorial misconduct where claimed infringem e nt of co n s titutio n al ri ght s w a s t e nuo u s and speculative). The defendants’ reliance on Abb i n gt o n ’s testimony does not alter the result. Abbington provided n o details about the Fatah and Arafat pictures he had purportedly seen. For example, h e w a s not asked when he allegedly saw these pro-Fatah materials or where. He testified that he visited various zakat committees, but he was not asked which zakat committees he was visiting when he allegedly saw this material. Because there is also no indication in the record that the Israeli military had actuall y s e i z e d such material, it is also not clear that the letter rogatory would have led to evidence favorable to the defense. See 8 C H AR L E S ALA N WR I G H T , E T AL ., F E D E RAL P RA C T I C E A N D PR O C E D U R E § 2005.1 at 70 (3d ed. 2010) (district court should issue lett e r s r o g atory “whenever it is determined on a case-by-case basis that their use will facilitate discovery”). We therefore cannot say that there is a reasonable probability that disclosure of the material would have cast the case in a different light, t h e r eb y u n dermining confidence in the verdict. See Webster , 1 6 2 F

. 3 d a t 336; see also Rosen , 240 F.R.D. at 215 (letter rogatory denied where testimony sought was not necessary to ensure a fair trial). Given the voluminous amount of m a t e ri a l that the Israelis seized, Avi’s testimony that he produced all material that was r e l e v a n t to the committees, and the absence of proof that pro-Fatah materials were present and seized from the specific zakat committees that the Government alleged were controlled by Hamas, the district court did not abuse its discretion by failing to issue a letter

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rogatory to the I s r a e l i government five months before trial on the basis that doing so would enable only a fishing expedition. F. Production of the defendants’ intercepted statements The defendants next contend that t h e di s t ri ct court erred by refusing to compel the Government pursuant to the Rules of Criminal Procedure to disclose the defendants’ own intercepted statements to them. This issue implicates the Government’s privilege in a criminal case to prevent discovery of classified information in order to protect national security. The defendants contend that the Government failed to i nv o k e properly its privilege to withhold classified information and also failed to show that national security would be jeopardized by disclosure of their own statements. We review the district c ourt’s alleged discovery error for an abuse of discretion. United States v. Garcia , 567 F.3d 721, 734 (5th Cir. 2009). We start by reviewing additional ba c k gr o u nd information. During the

course o f i t s i nvestigation in this case, the Government intercepted tens of thousands of telephone calls and facsimile transmissio n s through 24-hour surveillance of the defendants, as authorized under FISA, 50 U.S.C. § 1801, et seq . Because most of the calls were in Arabic, FBI translators identified which

c alls were pertinent to the intelli ge nc e inve s ti gatio n an d p rep are d ap p roxi m at ely 9600 English language summaries, as well as a smaller number of verbatim transcripts. Calls that were deemed not pertinent were neither translated nor summarized. Initially, all of the intercepted calls were classified b y the Government. Subsequently, the G o vernment declassified the English summaries and the entire contents of intercepts for four of the eight FISA subjects. This declassified material was produced to the defense. Defense counsel, but not the defendants themselves, were also provided access to the remaining classified intercepts because counsel had t h e proper security clearances. Because the

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classified materials were in Arabic, however, de fense counsel could not understand them, nor could they discuss the material with their clients because the defendants did not have a security clearance. The defendants moved to declassify the remaining FISA intercepts, or, in t h e alternative, for production of their own individual statements, so that counsel and their clients could review them together. The Government opposed the motion on the ground that the intercepts could not be declassified wholesale because the materials included informatio n rel evant to national security and the

enormous volume of it made review of all the material impractical. The Government offered, however, to s e ek declassification of any specific FISA intercepts identified by counsel. The Government suggested that counsel could review with their clients the decl a s s if ied summaries and then identify which calls they wanted to hear or time periods that might contain other relevant calls. The Government would then seek a decl a s sification review of the identified calls. The district court held that the Govern m e nt’ s p ro p o s al w a s c o n s istent with CIPA (the Classified Information Procedures Act, 18 U.S.C. app. 3 §§ 1–16), and refused to order disclosure of all the classified FISA intercepts. It ruled instead that counsel could seek declassification of specific int e r c e p t s . On appeal, the defendants contend that the district court erred be c a use the plain language of the Rules of Criminal Procedure requir e d p e r s onal disclosure of their own intercepted statements. Discovery in a criminal case is governed by Rule 16 of the Federal Rules of Criminal Procedure, which specif i e s t h e type of information subject to disclosure by the Government. See F E D

. R. C R I M

. P. 16 (a)(1). The rule generally requires the Government to disclose “to the defendant

. . . any relevant written

or recorded statement by the defendant” that is within the G overnment’s possession. F E D

. R. C R I M

. P. 16 (a)(1)( B) (i). The rule also grants the district

c o u r t the power, however, to restrict or deny discovery in a criminal case for

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“good cause.” The advisory committee notes indicate that “good cause” includes “the protection of information vital to the national security.” F E D

. R. C R I M

. P. 16(d)(1) & advisory committee’s note on 1966 amendments. Congress passed CIPA to provide further guidance and protect against the unauthorized disclosure of classified informat i o n i n the custody of the federal courts. In re Terrorist Bombings of U.S. Embassies in E. Africa , 552 F.3d 93, 121 (2d Cir. 2008). CIPA’s purpose was to set forth procedures designed to “protect[] and restrict[] the discovery of classified information in a way t h a t d o e s not impair the defendant’s right to a fair trial.” United States v. O’Hara , 301 F.3d 563, 568 (7th Cir. 2002). Pursuant to Section 4 of CIPA, entitled “Discovery of classified information by defendants,” a district court may authorize the Government “to delete specified items of classified information from documents to be made availab le to the defendant through discovery under the Federal Rules

o f Criminal Procedure, to substitute a summary of the information for s u c h classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove.” 18 U.S.C. app. 3 § 4. 1 4 CIPA is procedural and neither cr e a t e s nor limits a defendant’s right of discovery. See United States v. Mejia , 448 F.3d 436, 455 (D.C. Cir. 2006); see also United States v. Varca , 896 F.2d 900, 905 (5th Cir. 1990) (CIPA does not expand traditional rules of criminal discovery). Instead, it clarifies the district court’s existing power to restrict or deny discovery under the Federal Rules of Criminal Procedure. Mejia , 448 F.3d at 455; United States v. Aref , 533 F.3d 72, 78 (2d Cir. 2008). Both CIPA and Rule 16 leave “the p r e c i se conditions under which the

“Clas sif iedinfor mat ion”is def ined in rele vant part as “a ny infor mat ion or m ater ial 1 4 that has been det erm ined by the Unit ed Sta tes Go vernm ent pur sua nt to an Execut ive ord er, st atut e, or regula tio n, to requ ire pr ote cti on agains t unauth orize d dis clos ure for reas ons of natio nal se curity. ” 18 U. S. C. app . 3 § 1. 67 Case: 09-10560 Document: 00511687541 Page: 67 Date Filed: 12/07/2011No. 09-10560

defense may obtain access to discoverable information to the informed discretion of the district court.” In re Terrorist Bombings , 552 F.3d at 122. We have not previously addressed the scope of the Government’s privilege to prevent discovery of classified information under CIPA. Our sister circuits, guided generally by two Supre m e C o urt decisions, have addressed the issue, however, and have adopted similar tests for a p p l i c ation of the Government’s privilege. See, e.g., Aref , 5 3 3 F

. 3 d a t 80; United States v. Yunis , 867 F.2d 617, 623–24 (D.C. Cir. 1989). The first Supreme Court decision that has guided our sister circuits is United States v. Reynolds , 345 U.S. 1 (1953), where plaintiffs in

a civil case agains t the United States sought discovery of an Air Force investigative report about the crash of a bomber. The Court there recognized a governmental privilege to protect military and state secrets, and it held that a plaintiff could be denied evidence if “there is a re asonable danger that compulsion of the eviden c e w i ll expose military matters which, in the interest of national security, should not be divulged.” Id. at 10. The second case that has influenced our sister circuits’ examination of the Government’s classified information privilege is Roviaro v. U n i ted States , 353 U.S. 53 (1957), a criminal case involving the privilege to withhold a confidential informant’s name. In that case, the Court recognized the Government’s right to withhold the identity of an informer who p r ovides police officers with information about violations of law, id. at 59, but it also held that “the privilege must give way” when the information “is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause.” Id. at 60–61. In Aref , the Second Circuit applied Reynolds and Roviaro in the context of the Government’s withholding of discovery of classifi e d information in a CIPA

case. See Aref

, 533 F.3d a t 7 9

– 8 0. The court believed that the classified information privile g e contemplated by CIPA is analogous to the common law state-secrets p rivi lege recognized in Reynolds. It also adopted the test from

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Roviaro as to when the privileg e m a y yi e l d to a defendant’s need for the information. The court held that a governmental privilege claim in a CIPA case, like the state-secrets privilege, may prevent disclosure of otherwise discoverable information when (1) there is a reasonable danger that disclosure would expose matters that otherwise should n o t be disclosed in the interest of national security, and (2) the p rivilege claim has been lodged by an appropriate governmental agency head. I d

. a t 8 0

. The court also held that the privilege nevertheless may yield when the information is helpful o r m a t erial to the defense. Id. Similarly, in Yunis , the District of Columbia Circuit also a s s essed discovery orders in a CIPA case. The cour t t h e r e recognized the similarity b etween the “sensitive considerations underl[ying] the classified inform a t i o n privilege” and the “informant’s privilege identified in Roviaro .” Yunis , 867 F.2d at 622–23. The c ourt concluded, consistent with Roviaro , that when the Government invokes a classified information privilege, the distric t c o u r t must determine (1) whether the defendant has shown that the information sought is relevant, which it considered t o b e a “low hurdle,” and (2) whether the Government’s claim of privilege is “at least a colorable one.” I d

. at 623. The court further recognized that the defendant’s relevance showing could overcome the Gove r n m ent’s claim of privilege when the information sought is helpful to the defense, but the court required mo r e t h a n “a mere showing of theoretical relevance.” Id. ; see also United States v . S m i t h , 780 F.2d 1102, 1110 (4th Cir. 1985) (en banc) (equating classified material s o u gh t by the defendant with information about informers in Roviaro , and holding that the district court may order disclosure only when the information is necessary to the defense and is neither cumulative nor speculative). Against this backdrop, we consider the defendants’ claim in this case. As

an initial matter, the defendants contend that the Government did not properly

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invoke its privilege to withhold classified information because a privilege claim

was not lodged by the responsible agency head, i.e. the At t o r n e y G eneral. In support of this proposition, the defendants rely primarily on the Second Circuit’s decision in Aref

, where the court held that the privilege to withho l d classified information could be asserted only “‘by the head o f t h e department which has cont r o l over the matter, after actual personal consideration by that officer.’” Aref , 533 F.3d at 80 (quoting Reynolds , 3 4 5 U .S. at 8). We do not believe that t h e ab s e nce of the agency head’s imprimatur in this case is fatal, however, f o r several reasons. First , A ref relied on the Supreme Court’s civil decision in Reynolds even though Aref

was a criminal case. The Supreme Court in Reynoldsappeared to distinguish between the rationale for the Government’s evidentiary privilege in criminal and civil ca s e s . See Reynolds , 345 U.S. at 12. We therefore join the Fourth Circuit i n questioning whether Aref properly adopted and applied Reynolds in a criminal context. See United States v. Rosen , 557 F. 3 d 192, 198 (4th Cir. 2009). S eco n d , a s th e Fourth Circuit observed, there is no equivalent require m e nt in CIPA that the governmental privilege must be initiated by an ag e ncy head. See id. C I PA imposes upon district courts a mandatory duty to prevent the disclosure of any classified materi al s b y i s s uin g a p rotective order “[u]pon motion of the United States.” 18 U.S.C. app. 3 § 3 (“Upon motion of the United States, the court shall issue an order to protect against the disclosure of any classified information disclosed by the United States to any defendant in any criminal case

. . . .”) (emphasis added); see In re Terrorist Bombings , 552 F.3d at 121. Some CIPA provisions do require the Attorney General’s participati o n . Se e, e.g., 18 U.S.C. app. 3 § 6(a) (“Any hea ri n g h e ld pursuant to this subsection (or any portion of such hearing specified in the request of the Attorney General) shall be held in camera if the Attorney General certifies to the court in such petition that

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a public proceeding may result in the disclosure of classified information.”); 18 U.S.C. app. 3 § 6(e)(1) (“Whenever the c ourt denies a motion by the United S t a t e s t hat it issue an order under subsection (c) and the United States fi l e s with the court an affidavit of the Attorney General objecting to disclosure of the classified informatio n at issue, the court shall order that the defendant not disclose or cause the disclosure of such in formation.”). However, the CIPA discovery provision does not similarly require the Attorney General to act. See 18 U.S.C. app. 3 § 4 (providing only that “upon a sufficient showing” the district court may authorize “the United States” to withhold classified information). The absence of a requirement in CIPA that the Attorney General assert the privilege suggests that the district court may order withholding of classified information from discovery without an explicit c l a i m from the agency head as long as the United States otherwise m a k e s a sufficient showing for the privilege. See R u ssello v. United States , 464 U.S. 16, 23 (1983) (“[W]here Congress inc l u d e s particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion o r exclusion.”) (alteration in original) (internal quotation marks and citation omitted). Finally, the Second Circuit held in Aref that a “failure to comply with [the] for m ality” of an agency head’s assertion of the privilege may be excused when there would be no benefit in reman ding solely “for the purpose of having the department head agree that disclosure of the classified information would pose

a risk to national security.” Aref , 533 F.3d at 80. Even assuming arguendo that the privi l e g e m u st be asserted by the agency head, we believe that a remand would be of no benefit here because we see no reason to t h i nk t h e Attorney General would disagree with the decision to assert the privilege. 1 5

The def enda nts off

er o n ly a conc lus ory and sp ecul ative argum ent that a “high 1 5 De par tm ent of Jus tic e” off icia l wo uld not ass ert the privilege beca use the clas sif icat ion of the 71 Case: 09-10560 Document: 00511687541 Page: 71 Date Filed: 12/07/2011No. 09-10560

No one seriously disputes that the G overnment possesses an important privilege to withhold classified information, nor do we believe a contrary assertion co u l d b e s u stained. See Yunis , 867 F.2d at 622–23 (“The Supreme Court has l o n g r ecognized that a legitimate government privilege protects national security concerns.”) (citing Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp. , 333 U.S. 103, 111 (1948) (“[The exe c utive branch] has available intelligence services whose reports are not and ought not to be published to the world.”)). Therefore, we conclude that the failure of a Government agency head to invoke the classified information privilege here does not constitute reversible

error. Next, the defen d ants contend that even if the Government properly invoked a privilege to withhold classified information, the Government failed to show that national security concerns required withho l ding their statements. This argument is premised on the defendants’ belief that disclosing to them the

c o nt e nt s of th eir own statements “could not possibly endanger national s e curity . ” We do not agree. As the court recognized in Yunis , the Government may have

an interest in protecting the source and means of surveillance that goes beyond protection of the actual contents of an intercepted conversation. See Yunis , 867 F.2d at 623 (“Things that did not make sense to the District Judge would make all too much sense to a foreign c o unter-intelligence specialist who could learn much about this nation’s intelligen c e - gathering capabilities from what these documents revealed ab o ut sources and methods.”). The Government persuasively argued, both here and in th e di strict court, that because the defendants were not the only participants on the intercepted calls, disclosing the intercepts could thwart ongoing or future investigations if the calls were declassified en masse.

inte rce pt s wa s “p aten tly frivolous ” a n d “calcula ted to give the governm ent an unfa ir advant age.” We se e n o e viden ce of bad fai th by t he Go vernm ent, ho we ver. 72 Case: 09-10560 Document: 00511687541 Page: 72 Date Filed: 12/07/2011No. 09-10560

The defendants contend that this case is not like Yuni s because the Government chose to d e c l a s sify and present at trial some of the intercepted communications, thereby revealing the fact and means of th e surveillance obtained through FISA intercepts. But th e f act that the Government determines that declassification of some o f t h e communications will not harm national security does not ipso facto mean that declassification of all communications would have the same effect. Although the Government’s claim of privilege may yield when the information is essential to fairly determine the issues at trial or when necessary for an important part of the defense, the defendants want us to second guess in the first instan c e t h e Government’s determination of what is properly considered classif i e d i nformation. We decline to do so. See United 1 6 States v. Abu Ali , 528 F.3d 210, 253 (4th Cir. 2008) (“[W]e have no authority[] to consider judgments made by the Attorney General concern i n g t h e extent to which the information in issue here implicates national security.”). Having determined that the Government properly invoked its privilege to withhold classified information, we would ordinarily next consider whether the privilege nevertheless should have yielded to the defendants’ n e e d f o r the information, which requires a balancing of i nterests. See Roviaro , 353 U.S. at 60–61; United States v. Sarkissian , 841 F.2d 959, 965 (9th Ci r . 1 9 8 8) (holding that when deciding discovery issues under CIPA § 4 the district court may balance a defendant’s n e e d for the information against national security

c o n c e rns). The instant case is unusual, however, insofar as the Government

The def enda nts cont end that acc ept ing the Go vernm ent’ s rat ionale for ass ert ing the 1 6 privilege i n this cas e wi ll enco urage the pr act ice of rout ine clas sif icat ion of all wi ret ap evide nce cap turing a def enda nt’ s conver sat ions , inclu ding Title III wi ret aps in dom es tic cas es . We for es ee no suc h abus ive pr act ice, how ever, beca use the Go vernm ent’ s inte res t in pr ote cti ng clas sif ied info rm atio n “ca nnot overr ide the defen dant ’s right to a fai r tri al. ” Uni ted States v. Ferna ndez , 913 F.2d 148, 154 (4th Cir. 1990)

. Thus, as note d above, the ass ert ed privilege wi ll not suc cee d wh en the info rm atio n is help ful to the def ens e or es se ntial to a fai r det erm inati on of th e c a use , but that balanc ing ques tio n is dif fer ent fr om wh ethe r info rm atio n sho uld be clas sif ied , a d ete rm inati on thatis le ftt o t he Go vernm ent. See18 U. S. C. App

. 3 § 1. 73 Case: 09-10560 Document: 00511687541 Page: 73 Date Filed: 12/07/2011No. 09-10560

sought to withhold classified information from the defendants themselves, but it disclosed the untranslated intercepts to cleared defense counsel and agreed to further consider specific requests for declassification of other calls. Under these facts, we do not belie v e th a t the district court’s discovery rulings were erroneous. The defendants were provided with a substantial amount of information that was deemed relevant. The defendants themselves had access to declassified summaries of thousands of the intercepted calls that

were pertinent to the intelligence investigation, all o f the calls that the Government intended to use at trial, and the entire contents of four of the FISA intercepts. The calls to which the defendants lacked access were available to defense counsel. Despite arguing th at they could not understand the Arabic calls, counsel concede in their brief that they began the p r o cess of having the calls translated by cleared translators, first in Texas and later in Washington, D.C. Given the circumstances, we question whether there was a di s c o v e ry 1 7

error at all, or whether the defendants have demonstrated prejudice. See In re Terrorist Bombings , 552 F.3d at 126 (holding that the di s trict court was permitted to issue a protective order under CIPA limiting disclosure of classified i n f o r m ation to persons with proper security clearance, and noting th a t “production of [classified] materials to a party’s attorney alone falls within the

common meanin g of ‘ di s c overy , ’” notwithstanding defendant’s claim that counsel could not interpret evidence adequately); see also United States v. Thai , 29 F.3d 785, 804–05 (2d Cir. 1994) (holding that Government’s failure to di s c l o s e translation of defendant’s recorded statement prior to trial was not prejudicial

Acco rding to the def

enda nts , thei r Texas tra nsl ator los t his clea ranc e and wa s unable 1 7 to cont inue, and the def ens e aband oned use of the W a s h i n gt o n tra nsl ator s beca use “th e pr oce ss wa s unw ieldly and pr oduc e d l i t t le use ful info rm atio n.” Thes e cir cum st ance s we re unfo rtu nate , but they w e r e not the faul t of the Go vernm ent. Mo reo ver, the fac t that litt le use ful info rm atio n wa s dis cover ed wh en the def ens e couns el did att em pt to use the pr oce dur es autho rizedby the dis tri ct cour t tend s to sugges t a l ackof har m to the def

enda nts

. 74 Case: 09-10560 Document: 00511687541 Page: 74 Date Filed: 12/07/2011No. 09-10560

where inter alia defense counsel had the tapes of the conversation and had had a translator listen to them). Assuming without decidin g that the Government’s production of the untranslated classified intercepts to the defendants’ attorneys was insufficient under Rule 16, we nonetheless are satisfied that the district court did not abuse its discretion by refusing to compel the Government to produce the intercepts to the defendants themselves without further requests for declassificatio n . Rule 16 requires that th e G o v ernment disclose to the defendant “any relevant” statements made by the defendant. F E D

. R. C R I M

. P. 16(a)(1)(A) & (B) (i) (emphasis added). This “necessarily implies t h e existence of irrelevant statements by the defendant” that are not covered by the rule. Yunis , 867 F.2d at 624 n.10. It bears emphasis that th e d e f endants were not outright denied

acce s s to the classified intercepts; instead, they were required to identify intercepts that could be reviewed for a decision by the Government whether to declassify and produce them or, presumably, to maintain its privilege claim. If the Government chose to maintain its claim of privilege, the district court then would have had to e n g a g e i n the balancing test to determine if the privilege should yield. But t h e proceedings never got that far because, as noted by the district court, the defendants failed to participate in this process. The issue, as

we perceive it, is therefore whether the district court’s procedures requiring the specific declassification requests denied the defend a nt s access to information that was relevant or would have been helpful to their defense. The defendants essentially contend that the district cour t s h o u l d have made a wholesale determination whether their own statements on the intercepted calls would have been helpful to their defense, and they argue that

we should remand the case for the district court to make that determination. We

are not persuaded. An assessment of materiality by the district court of all the classified FISA intercepts without some narrowing by the parties was not

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feasible in a case such as this involving tens of thousands of calls. Putting aside the fact that the calls were in Arabic and untranslated, to have the district court

w a de thro u gh the voluminous materials searching for scr ap s of co nver s atio n th at might be helpful to the defendants w o uld be a waste of precious judicial

resources. The defendants assert tha t t h e y wanted access to their own FISA intercepts to search for exculpatory evidence, such as conversations showing their intent to comply with the law or their belief that contributions to z a kat committees that had not been designated as terrorist organizations was lawful. They assert that these conversations would have shown their state of mind. But

assum i n g s uch statements exist, the defendants themselves were in the best position to assist their counsel in identifying any exculpatory calls based on their

own recollection and their ability to review the declassified summaries and other information provided to them. Counsel could then request that the statements be declassified by requesting them by date or by the name of the person on the call. No d o ubt this would be a difficult task, but courts have required defendants to demonstrate materiality even though the task is difficult. For example, in Yunis , 867 F

. 2d at 624, the court recognized the “Catch-22” that defendants had to demonstrate the materiality of classified information without having access to the information and without knowing its nature. The court held t h at the task was difficult but not impossible. Id. It emphasized that th e defendant “was present during all the relevant conversations” and therefore it

was reasonable “to expect some specificity” as to what benefit he expected from the evidence. Id. Similarly, it is reasonable to have the defendants specify which classified intercepts they wanted reviewed for declassification. Their argument that they

wan t ed conversations showing their state of mind, without more, presents

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merely the theoretical possibility that the materials were relevant and does not justify wholesale declassification of the intercepted calls. See Yunis , 867 F.2d at 623 (holding that “classified information is not discoverable on a mere showing of theoretic a l r e levance in the face of the government’s classified information privilege”). Review of the untranslated FISA intercepts, which numbered in the tens of thousands and monitored the defendants for 2 4 h o u r s per day for several years, presented a daunting task to anyone who wanted to review them. In light of the evidence already disc l o s e d to the defendants, permitting wholesale declassification, without some narrowing of the remaining calls, woul d h ave jeopardized the Government’s interest in protecting national security merely to permit a fishing expedition by the defendants. Therefore, t h e district court’s
require m e nt th at th e defendants seek declassification of specific FISA intercepts

was not an abuse of disc r e t i on under CIPA and properly balanced the defendants’ need to m o u n t a defense with the Government’s need to protect

c lassified information. We therefore reject the defendants’ argument on t h i s issue. G. Harmless and Cumulative Error H avi ng reviewed the defendants’ claims of trial error, and having identified erroneous rulings by the district court, we must next consider whether those errors require a new trial under the rubric of harmless error. To reiterate,

we have found error in: (1) the admission of Shorbagi’s hearsay testimony that Hamas controlled the West Bank zakat c o m m i ttees; (2) the admission of the three hearsay PA d o c u ments showing that HLF was a financial resource for Hamas and that Hamas h a d t ies to the Ramallah Zakat Committee; (3) the admi s s io n of J ohn Mc Bri en’s testimony giving a legal conclusion about donations to the zakat committees; and (4) the admission of opinion testimony from former National Security Co u n c il member Steven Simon about the United States’s

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interests in the Middle East. For the reasons stated above in Sections E.1 and E.4, we conclude that the errors in admitting McBrien’s and Simon’s testimony

were harmless. We therefore consider the errors related to Shorbagi’s testimony and the PA documents. We will then consider the defendants’ claim of cumulative error. 1. Harmless error If a district court errs in the admission or exclusion o f e vi d e nce at trial, “such error can be excused if it was harmless error.” Lowery , 135 F.3d at 9 59;

see F E D

. R. C R I M

. P. 52( A). “A nonconstitutional trial error is harmless unless it ‘had substantial and injurious e f f e ct or influence in determining the jury’s verdict.’” Lowery , 135 F.3d at 959 (quoting Kotteakos , 328 U.S. at 776). Under this standard, we ask “whether the error itself had substantial influence” on the jury in light of all that happened at trial; if we a r e “l e f t in grave doubt, the convict i o n c a nnot stand.” Kotteakos , 328 U.S. at 765; see also United States v. Williams , 957 F.2d 1238, 1244 (5th Cir. 1992) (“[W]e must view the error, not in isolation, but in relation to the entire proceedings.”) (internal quotation marks and citation omitted). The harmless error examination is thus fact-specific and record-intensive, requiring a close review of the entire trial proceedings. For this reason, comparing the harmless error analysis in one case to the analysis in another is not necessarily helpful. See United States v. Ong, 541 F.2d 331, 338 (2d Cir. 1976) (“Harmlessness is a relative term that requires specific definition in each

case by determining the effect on the jury’s verdict of the error’s absence.”); see also United S t a t es v. Jennings , 527 F.2d 862, 868 (5th Cir. 1976); Benham v. United States , 215 F.2d 472, 474 (5th Cir. 1954) (“Each case stands upon its own peculiar facts and ci r c u mstances as to whether a defendant has been afforded

a fair trial.”). Therefore, we must judge the likely effect of any error in the case before us based on the totality of the circumstances in this trial. “‘[U]nless there

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is a reasonable possibility that the improperly admitted evidence contributed to t h e c onviction, reversal is not required.’” Williams , 957 F.2d at 1242 (quoting Schneble v. Florida , 4 0 5 U

. S

. 427, 432 (1972)). Put another way, we will not

reverse a conviction “if ‘beyond a reasonable doubt the error complained of did not contribute to the verdict obtained.’” United States v. Hall , 500 F.3d 439, 443 (5th Cir. 2007) (quoting United State s v . Co r n e tt , 195 F.3d 776, 785 (5th Cir. 1999)). After a full review of the record, we are left with the firm conviction that the trial errors we have identified do not require reversal. In light of the volume of evidence against the defendants showing HLF’s c o n n e ction to Hamas and Hamas’s control of the zakat committees, the admission of Shorbagi’s testimony and the PA documents was merely cumulative. It is well established that error in admitting evidence will be found harmless when the evidence is cumulative, meaning that substanti a l evidence supports the same facts and inferences as those in the erroneously admitted evid e n c e . See, e.g., Hall , 500 F.3d at 444 (determining that t h e admission of disputed testimony was harmless because “[t] h e c h a l lenged portion of [the] testimony was merely cumulative of other evidence introduced without objection. A number of other witnesses testified–in much greater detail–that [the defendant] purchased ille g al drugs from McCallom.”); United States v. Okoronkwo , 46 F.3 d 4 2 6 , 435 (5th Cir. 1995) (holding that “Agent Taylor’s testimo ny w a s merely cumulative of substantial evidence establishing the various defendants’ participation in the conspiracy,” and the admission of the testimony was harmless); U n i t ed States v. Allie , 978 F.2d 1401, 1 4 0 8

–0 9 (5th Cir. 1992) (concluding that, because the Government had introduced admissible testimony regarding the presence of aliens living in d e f e ndant’s home, “the videotape was merely cumulative evidence and i t s introduction constitutes harmless error”); United States v. Hutson , 821 F.2d 1015, 1018 (5th Cir. 1987) (holding that hearsay testimony about defendant’s

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competency was harmless error in light of “voluminous” testimony on the subject from three expert witnesses); see also3B C H AR L E S A. WR I G H T , E TAL ., F E D E RAL P RA C T I C E & P R O C E D U R E : C R I M I NAL § 854 (3d ed.) (“Error in the admission of evidence is harmless if the facts shown by that evidence are already before the jury through other properly admitted evidence.”). In this case, the erroneously admitted evidence from Shorbagi and the PA documents showed that HLF financed Ham a s and that Hamas controlled the West Bank zakat committees to which HLF provided funds. We find from our review of the evidence that the s e f a c t s were before the jury from a plethora of evidence. The Government introdu c ed evidence showing a close connection

1 8 between the defendants and Hamas, which in turn supports the inference that HLF’s f undraising was designed to support Hamas. The Government also i ntroduced evidence that the zakat committees to which HLF provided fund s were controlled by Hamas.

a. HLF’s connection to Hamas Much of th e G overnment’s evidence at trial pre-dated H a m a s ’ s de s i gn atio n

as a terrorist organization. However, the evidenc e s erve d th e i m portant function of establishing the defendants’ relationship with Hamas and the intent of their later actions. The evidence showed that the long-standing connection between HLF and Hamas began in the late 1980s when HLF arose as a fundraising arm for the Palestine Committee. This fact was notably evident from the Elbarasse and Ashqar documents, which showed that HLF was created along with the IAP

Becaus e one wo uld not expe ct a p urp ort ed char itab le organi zatio n l ik e H LF or one 1 8 of the zak at com mi tte es to ope nly ack now led ge its ti e s t o a t e rro ris t group , muc h of the Go vernm ent’ s evidence wa s cir cum st antia l and requ iredthe jury to mak e logic al infe renc es . Ou r dis cus sio n here is not me ant to be an exhaus tive lis t of all t h e e vi d e nce that the Go vernm ent intr oduc ed per taini ng to HLF or the zak at com mitte es and thei r me mbe rs . Ou r re view of the evide nce, how ever, convin ces us of the overw helm ing natur e of the conne cti on betw een H LF, the zak at com mi tte es , and Ha mas . We endeavo r hereto outli ne only som e of the per sua siveevi denc e o f thes e c onnec tio ns. 80 Case: 09-10560 Document: 00511687541 Page: 80 Date Filed: 12/07/2011No. 09-10560

(the Islamic Association for Pales t i n e) and UASR (the United Association for Studies and Research) under the Pales tin e C o m mitt e e ’ s u mb rell a . The Palestine C ommittee’s by-laws specifically recognized HLF as “the official organizati o n” for fu n dr a i s i n g
. The testimony of Avi and Levitt established that Palestine Committees around the world served to support Hamas. The chairman of the Palestine Committee in the United States, Hamas leader Marzook, maintained contact info r mation for Baker, El-Mezain, and Elashi in his personal telephone book. Although El-Mezain told the FBI that he had no relationship with Marzook other than occasional holiday telephone calls, telephone records showed that Marzook called El-Mezain 52 times from 1989 to 1993. After Marzook was designated as a SDT and was taken into custody, Baker explained to a newspaper reporter that his name was likely in Marzook’s phone book because M a r z o o k had made a large donation to HLF. That

convers at i on was captured in a wiretap. Baker claimed that Marzook had written one check and HLF did not hear from him again. He also stated under oath in a deposition in a separate civil suit that HLF had no relationship with Marzook other than that single donation. Baker’s statements were untrue. The evidence showed that the donation to which Baker referred was made in three installments and occu r r e d in 1992, but it was far from the only contact that Marzook had with HLF and the individual defendants. Phone records showed that Marzook called Baker 25 times from January 1989 to January 199 0. There were also numerous financial transactions between the defendants and Marzook. Contrary to Baker’s denial of a relationship with Marzook, HLF made three payments of ten thousand dollars to Marzook and his wife in 1988 and 1989. During the late 1980s and early 1990s, Marz ook made payments of hundred s o f t h ousands of dollars to the IAP and the UASR, as well as smaller payments t o El-Mezain and Elashi. These and other pre-1995 financial transactions cast suspicion on HLF as a conduit for Hamas funding.

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For example, in 1988 HLF made payments of over $250,000 to an entity known as K&A Trading. It sent this money to a Switzerland bank account held by Khari H. al-Agha. Levitt testified at trial that al-Agh a was a Hamas financier. The evidence showed that al-Agha was connected to Marzook and was listed in Marzook’s personal telephone book. His name al s o a p p eared in a document found in Ashqar’s hom e , Ashqar Search 1, under “Important phone and f a x n u mbers. Palestine Section/Outside America.” Three months after HLF’s last payment to K&A Trading, Al-Agha sent approximately $1.3 million to Marzook. Investigating agents found no explanation in HLF’s records for the payments to K&A Trading, which i s not a charitable organization. Furthermore, from 1989 to 1994, HLF sent over $700,000 to the Islamic Center of Gaza, which was founded by Sheikh Yassin, the same person who founded Hamas. The Government also introduced into evidence numerous donation checks from the early 1990s that were made payable t o the IAP but deposited into HLF’s bank account and on which the donors had written in the memo line “for Palestinian Mujahideen only.” One donor wrote a letter to Baker in 1991 asking for books about Hama s a nd praising the “Islamic Uprising in Palestine.” Indicating HLF’s connection to Hamas, Baker wrote back to inform the woman that the IAP would send her the books and to “assure” her t h a t H L F w a s a “trustworthy organization” for people to “look up to, hoping and taking advantage of the historic opportunity to support the resistance of a nation and the jihad of a people.” HLF’s role as an early financial resource for Hamas was also evident from t he Palestine Committee’s influence on HLF. For example, in 1994, a dispute

arose between HLF and Ashqar about who should receive the p roceeds raised from speaking appearances in the United States by Hamas leader Jamil Hamami. Ashqar had arranged for Hamami to come to the United States and wanted to keep the p r o c e e d s for a separate organization that Ashqar had

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founded. Wiretap s c ap ture d co nver s atio n s a m o n g B ak er , El-Mezain, and several others discussing the situat i o n . Marzook and other Palestine Committee members i n t e rv e ned to resolve the dispute. One of the wiretaps, Ashqar Wi r etap 4, captured a conversation between Ashqar, Hamami, and Hamas leader Mohamed Siam. Siam informed Ashqa r th a t the Palestine Committee had decided that all funds raised by Hamami’s app e a r a n ces would be administered by HLF. Further evidence that HLF’s fundraising was intended to benefit Hamas

came from the activities of HLF and the individual defendants. Numerous video recordings found in HLF’s possession showed the defendants particip a t i ng at festivals, conferences, and fundraising events with known Hamas leaders, such

as M a r z o o k a n d Mishal. The Hamas flag was visible at some of these events, and many of the videos showed A b dul q a der’ s b an d p erforming songs that praised Hamas. Moreover, HLF advertised in pro-Hamas magazines published by the

1 9 IAP tha t a l so contained articles praising Hamas and urging readers to donate money to HLF in order to support the Intifada. One such magazine contained

a poem written by Baker stating, i n part, that “we will not accept other than H amas.” Baker also traveled to Gaza in 1991 to meet with Hamas l e a d e r M a h moud Zahar about “establish[ing] a central zakat committee for the Gaz a sector.” The defendan t s ’ support for Hamas was also evident in suspicious statements intercepted in wiretaps and documents found in HLF’s records. For example, at the Philadelphia meeting Baker made statements suggesting that participants should refer to Hamas only in code, and he instructed the

One vide o fro m 1991, HLF SearchNo. 71, flas hed H ama s logos on the scr een w hile 1 9 the band san g lyric s that inclu ded the fol low ing: “ L o n g l iv e Ha mas , our Islam ic Torc h. O, Mo ther , Ha mas call ed for jih a d o ver mo squ es ’ loud sp eak ers , wi th fr eed om . Every day it res ist s wi th st ones and dagger s. Tom orr ow , wi th Go d’s help , it wi ll be wi th a mac hine gun and a r ifl e.” 83 Case: 09-10560 Document: 00511687541 Page: 83 Date Filed: 12/07/2011No. 09-10560

participants how to respond if anyone asked about the purpose of the meeting. His statements suggested that deceptive practices were necessary to conceal the intent of the Palestine Committee. They w e r e a l s o consistent with security “guideline s” f

o un d a m o n g H L F’ s m at eri al s s tored at Infocom, which directed that there should be cover s t o ri e s agreed upon to explain things like meetings and t r av e l

. Another wiretap, just two days before Hamas was designated as a

2 0 terrorist or g a nization, captured a conversation in which El-Mezain and Odeh spoke approvingly about a Hamas suicide bomb attack. Odeh referred to the attack as a “beautiful operation,” and El-Mezain responded, “May it be good.” Although there was nothing illegal ab o ut th e def e n dant s ’ actions described thus far, the evidence of the defendants’ early connection to Hamas and support for its cause informed the inferences to be drawn by the jury from evidence that

came later, including the evidence of funds that w e r e s e n t to the West Bank zakat committees after th e 1995 designation of Hamas as a terrorist organization. For example, Shorbagi testified from personal knowledge that HLF continued to provide funds to the same purportedly charitable organizations as before Hamas’s designation. This testimony was based in part

on a conversation with El-Mezain. Indeed, there was ample evidence of financial records and wire transfers showing that HLF provided funds to the same zakat committees named in the indictment both before and after Hamas was designated as a terrorist organization. Because the evidence strongly supported the inference that the defendants were connected to Hamas before the

The doc ume nt, wh ich wa s label ed “The Found atio n’s Polic ies & Gu ide lines ,” inclu ded 2 0
com pr ehens ive pol icie s for ens uring the se cre cy of the organi zatio n’s act ivity. For exam ple , the pol icie s dir ect ed that doc ume nts sho uld be arr anged at me eti ngs so tha t t h e y c o uld be eas ily gott en rid of in an em ergenc y; that me asu res sho uld be tak en bef ore a me eti ng to be sur e ther e is no hidd en surveillan ce equip me nt; that an aler t signa l sho u l d b e given if the loca tio n is mo nito red or if a me mbe r of the com mi tte e is fol low ed; and that doc ume nts sho uld be hidd en wh en traveling and a pr ete xt sho uld be devis ed in cas e they are d i s c o vered in a se arc h. The pos se ss ion of suc h a doc ume nt by a pur por ted ly char i t ab l e organi zatio n wa s clea rly sus pic ious

. 84 Case: 09-10560 Document: 00511687541 Page: 84 Date Filed: 12/07/2011No. 09-10560

designation, it was logical for the jury to conclude that the defendants’ intent in financing the same committees after th e designation was to support Hamas. But there is additional evidence linking HLF to Hamas after Hamas’s designation. One organization that received over $75,000 from HLF after Hamas was designated as a terrorist or g a n i zation was the Islamic Relief Agency. Avi identified the Islamic Relief Agency as a Hamas intermediary organization that received money and sent it to zakat committee s c o n trolled by Hamas in Gaza and the West Ban k

. H L F ’ s continued support of Hamas was also shown in a 2001 letter on HLF letterhead addressed to Kamal al-Tamimi tha t directed a $5,000 grant to the Young Muslim Youth Association. Testimony showed that the Association was a subsidiary of ICS Hebron and that al-Tamimi was both a member of ICS Hebron and of Hamas. Still ot h er evidence demonstrated that HLF’s function as a fundraising entity for Hamas continued after H a m a s was designated as a terrorist organization. A 1996 video seized from HLF offices showed Abdulqader on stage at a fundraising event sending a message of greeting to Hamas leaders Sheikh Yassin, Dr. Abdel Aziz al-Rantisi, and Marzook. A wiretap in February 1 9 9 6

c a p tured a teleconference that HLF sponsored where one of the fea t u r e d speakers spoke of support in Pakistan for the “Palestinians under the leadership

of H a m a s ,” and the non-recognition of Israel, which was followed by a solicitation for donations to HLF. A report from HLF’s “Special Events Department” found

a t I n focom noted another teleconference in February 1996 that feature d Mohamed Siam, a Hamas leader, and noted that $18,500 was raised during the call. A 1996 letter sent to HLF’s New Jersey office along with a donation stated 2 1 that the money was for “relief supplies and weapons to crush the hated enemy,” and that “we must des t r o y I s r a e l .” HLF not only accepted the donation but

S iam ’snam e w as sp elle d “Se yam” int he rep ort

. 2 1 85 Case: 09-10560 Document: 00511687541 Page: 85 Date Filed: 12/07/2011No. 09-10560

continued to solicit funds from th e letter’s author, who continued to donate money t o H L F through 1998. A June 1996 letter from defendant Odeh to an HLF officer showed that HLF had provided funds used to support the orphaned children of Yehia Ayyash, who was identified as a Hamas engineer and inventor of suicide bombs. An a u dio tape from 1996 that was seized from HLF’s offices contained songs praising Hamas and discussions of suicide bombers as heroes. In a wiretap of El-Mezain’s phone, also in 1996, El-Mezain received a phone call about a suicide bombing on a bus in Jerusalem and stated, “It is good, by God.” In 1997 HLF promoted a teleconference in a flier that advertised the call

as featuring Hamed Bitawi and Mohamed Siam. Levitt and Avi identified both

men as senior Hamas leaders. The flier was written in English on one side and in Arabic on the other side. However, only the Arabic side referred to Bitawi and Siam. Wiretap evide n c e from 1999 further supported an inference that the Palestine Committee was intimately invo lv e d i n the activities of HLF. For example, two 1999 conversations were intercepted involving Omar Ahmad, who

was a member of the Palestine Committee and was also associated with the IAP. Ahmad was neither an employee nor a board member of HLF but he was heard influencing HLF business. In Baker Wiretap No. 33, Ahmad i n s t r u c ted HLF employee Haitham Maghawri, over Maghaw ri ’ s p r otest, to send money to Lebanon because Baker had promised to give Ahmad $50,000 for a project there. In another conversation, Ahmad instructed Baker on the compensation to be paid to El-Mezain for his fundraising work. The two men also joked about the telephone being bugged. Because Ahmad had no relationship to HLF other than his connection to th e P al estine Committee, his conversations about HLF b u s in e s s an d p ro

j e cts suggest that the Palestine Committee controlled HLF even after the designation of Hamas as a terrorist organization.

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Material seized from HLF’s offices and computers also demonstrated a continuing connection between HLF and Hamas. For example, HLF maintained a list of overseas speakers, modified as late as 1999, that contained the names of several people identified as Hamas leaders, such as Fuad Abu Zeid, Hamed Bitawi, and Dr. Yousef Karadawi. More than twenty of the speakers on the list

were also found in Marzook’s personal telephone book seized i n J u l y 1995. At least eight of the listed speakers also shared the same phone number identified at trial as being present on Hamas letterhead. The HLF sp e a k ers list contradicted a statement by Baker to a reporter denying that HLF used Hamas members as speakers. Furthermore, numero u s p hoto gr ap h s of variou s H a m a s l e a der s w ere f o un d on HLF’s computers in 2001. Some of the material found in HLF’s offices that related to Hamas pre-dated Hamas’s designation as a terrorist organization, but the fact that HL F m aintained the material many years later was probative of HLF’s support for Hamas. For example, a picture from 1990 was found in Odeh’s New Jersey office in 2001 celebrating the o n e - y e ar anniversary of the imprisonment o f H a m a s founder Sheikh Yassin. A book was also found in Odeh’s office that chronicled the life of the martyr Izz El-Din al-Qassam, who served as the namesake of Hamas’s military wing. A l i s t of “important addresses” printed by the publisher in the b a c k o f the book included HLF’s previous address in Indiana. We believe that a jury could not help but infer from the above e vi dence that the defendants had a close association with Hamas and that HLF acted to fund Hamas both before and after Hamas’s designation as a terrorist organization. Therefore, to the ext e n t S horbagi and the PA documents sug g e s t e d that HLF was a financial resource for Hamas, the erroneously admitted evidence was cumulative. The same is true to the extent that Shorbagi

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and the PA documents indicated that Hamas controlled the zakat committees, as we explain in the next section.

b. Hamas’s control of the zakat committees The Government introduced extensive evidence d o cumenting HLF’s financial su p p o rt of the zakat committees, both before and after Hamas’s designation as a terrorist organization. Therefore, evidence of Hamas’s ties to those committees was also strong evid e n c e th at the defendants provided material support to Hamas as charged in the indictment. There was abundant evidence, in addition to S h orbagi’s testimony and the PA documents, showing Hamas’s influence on the zakat committees and demonstrating that many of the people with whom the defendants inter act e d f ro m tho s e committees were Hamas leaders and members. As already noted above, Levitt and Avi both testified about Hamas’s control of the zakat committees. Levitt based his opinion on intervi ews with Palestinian, Israeli, and American authorities, on the Hamas leadership of the zakat committees, and on the Hamas-related materials found in the committees. He specifically identified indivi d uals associated with the Ramallah and Jenin committees as being Hamas members, and he indicated that one such individual had participated in a suicide bomb attack in 1997. Avi also gave his expert opinion that Hamas controlled the zakat committees. In testimony cumulative of Shorbagi’s testimony, Levitt and Avi both identified Hamed Bitawi, from the Nablus Zakat Committee, as a Hamas member. There was also other e vi d e n c e connecting the Nablus Zakat Committee and B i tawi to Hamas. For instance, Bitawi’s name was listed on the Nablus committee’s bank records obtained by the FBI. His picture was found on HLF

com p uters wherein he was seen holding a gun and a Quran, with the word “Hamas” in the background. Hamas leader Mishal specifical l y praised Bitawi in a 1992 video recording. Another video, found in HLF’s possession and known

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as the “tent video,” showed Bi t a w i p articipating in a meeting along with

a p p r o ximately a dozen other individuals who had been deported from Israel. 22 Bitawi introduced himself in the video as being from the N ab l u s Zakat Committee. Other participants, including Dr. al-Rantisi, actually introduced themselves as founders of Hamas, while Avi identified still others in the video

as Hamas members. The Hamas logo flashed on the screen several times. One of the participants at the meeting specifically mentioned Baker and El-Mezain, as well as HLF, which was providing support for the deportees. Bitawi was further mentioned in the 1991 letter to Baker that was seized from Elbarasse’s home, Elbarasse No. 22. Bitawi was listed in that letter as part of “[o]ur presence” on the al-Tadamoun Society, a s ub -group of the Nablus committee. Further e vi dence related to Hamas that was seized from the Nablus committee included a postcard depicting two Hamas suicide bomb e r s that praised a suicide attack by one of them in 2001, as well as a key chain with the picture of Hamas founder Sheikh Yassin. Numerous Hamas posters and postcards with pictures of suicide bombers and Hamas leaders and symbols were seized from the Nablus, Tulkarem, Hebron, and Jenin committees. Other documents seized from the zakat committees b y t he Israelis also showed Hamas’s influence on the committees. A few examples demonstrate this point. An April 2001 “polit i c a l s tatement” was seized from ICS Hebron. The statement supported Hamas and jihad and advocated “infliction upon the enemy [of] heavy casualties.” A 1999 letter from a group of prisone rs was also found in ICS Hebron. I n the letter, the prisoners asked that the Young Muslim

In 1992, Isra el dep ort ed t o L e b a n on over 400 Pales tini ans wh o we re thou ght to be 2 2
ass ocia ted wi th Ha mas . The act ion wa s cond em ned by the inte rnat ional com mun ity, and the dep ort ees we re event ually allow ed to ret urn to Pales tine

. T h e t e n t video fou nd in HLF’ s pos se ss ion doc ume nted re mark s by so me of the individual s wh o we re dep ort ed wh ile they we re in Lebanon

. 89 Case: 09-10560 Document: 00511687541 Page: 89 Date Filed: 12/07/2011No. 09-10560

Society, a sub-group of ICS Hebron, continue to support them. Avi testified that the letter was consistent with Hamas’s support for prisoners. Avi also testified that the head of ICS Hebron, Abdel Khaleq al-Natsheh,

was a Hamas leader. His testimony was corroborated by a 2 0 0 1 vi d e o seized from the zak at committee wherein al-Natsheh was described as the head of Hamas in Hebron. Furthermore, al-Natsheh was also li s t e d in Marzook’s personal phone book. 2 3 Israeli authorities a l s o seized internal Hamas communications from the zaka t c o m m i t tees. For example, a document from January 2001 was found folded very small and concealed i n a l

- N a t s heh’s office at ICS Hebron. The d ocument reported the results of Hamas’s internal election and discus s e d th e sign i f i cance of providing support for martyrs and prisoners. The secretive nature of the document was evident from instructions directing readers to call

a telephone number in Switzerland for “emergency matters” and to give a code phrase. Avi testified that these instructions were a common security precaution f o r Hamas. He also opined that the presence of the document at the z a k a t

c o mmittee was significant because it showed that the committee’s focus include d Hamas’s internal affairs. 2 4 Other evidence also showed connections between Hamas and t h e zakat committees that was cumulative of the Shorba gi testimony and the PA documents. For example, Shorbagi identified Mohamed Fuad Abu Zeid and the

HLF doc ume nts foundin the sear ch of Infoc oms how ed thatH LF hadbeen deal ing 2 3 wi th al- Nat she h sin ce the earl y 1990s

. In a 1994 fax, HLF dir ect ed that al- Nat she h be noti fie d about a dona tio n and ins tru cte d that fund s be del ivere d to his com mi tte e. Ot her HLF doc ume nts sho we d that al- Nat she h rep ort ed back to HL F about the use of grant s to the He bronc om mi tte e. This evi denc e f urt her sho we d HLF’ s conne cti on to Ha mas . Anothe r inte rnal Ha mas doc ume nt wa s fou nd in the Jenin Zak at Com mi tte e in 2004, 2 4 aft er HLF wa s clos ed. Never thel es s, the doc ume nt, wh ich me ntio ned Ha mas fou nder Shei kh Yas sin a n d d isc uss ed Ha mas ’s inte rnal cont ingenc y plan s for res pond ing to an Isra eli wi thdraw al fr om Ga za, is sim ilar in n a t u r e to othe r pol itic al doc ume nts fou nd in the com mi tte es andd em ons tra tes a conne cti on wi th Ha mas . 90 Case: 09-10560 Document: 00511687541 Page: 90 Date Filed: 12/07/2011No. 09-10560

Jenin Zakat Committee as being connected to Hama s . Abu Zeid identified himself as being from the Jenin committee in the tent video. Avi also identified Abu Zeid as a Hamas figure. His testimony was further supported by a video of

a conference sponsored by the Muslim Arab Youth Association (“MAYA”) in 1992. Baker was a MAYA board member, and Hamas leader Mishal referred to Abu Zeid at the conference as an important person in the Palestinian struggle. Abu Zeid was further listed as a ranking Hamas figure in a book about Hamas published by the UA S R

. T h e book, entitled The Palestinian Intifada in the Hebrew Press: A study about t h e I s la mic Resistance Movement “Hamas,” was found among HLF’s records in the office of Defendant Odeh in 2001. Abu Zeid’s

name also appeared in Ma r z o o k ’ s p ersonal phone book, as well as on HLF’s speakers list. Moreover, in Elbarasse No. 22, the letter addressed to Baker, the dec l a r ant asserted that the Jenin Zakat Committee was “Guaranteed

. . . [b]y virtue of Mr. Mohamed Fouad Abu Zeid’s position.” Levitt f u r th er identified still another member of the Jenin Zakat Committee, Fawaz Hamad, as a Hamas member. According to testimony from Levitt and Agent Burns, Hamad not only worked for the Jenin Zakat Committee but also became an HLF representative in Jenin after serving time in an Israeli prison for aiding Hamas. Hamad operated a hospital that was controlled by the Jenin committee, and he wrote a letter to defendant El-Mezain, Infocom Search No. 30, that discussed the hospital oper a t i on. The letter identified various hospital board members and others as “Islamist,” “deportee,” “brother,” “semibrother,” or “Fatah.” This letter was among the H L F d o cuments found at Infocom and was consistent with other evidence associating the term “Islamists” with Hamas. Notably, a t t h e P h iladelphia meeting in 1993, Muin Shabib referred to the Jenin committee’s building of the hospital, stating that it “is really ours, for the Islamists either in management or the teams working in it.” A d o c u m e nt found in Ashqar’s home, Ashqar Search 5, also referred to the

91 Case: 09-10560 Document: 00511687541 Page: 91 Date Filed: 12/07/2011No. 09-10560

“Islamist” presence in various charitable organizations, including ICS Hebron, Nablus, Tulkarem, and Jenin. Shorbagi also identified Jamil Hamami as a Hamas member, but there

was ample evidence of this fact. H a m a m i w a s associated with the Islamic Science and Culture Center in the West Bank, to which HLF donated almost half

a million dol l ars before the center was closed in 1996. Levitt and Avi both identified Hamami as a Hamas leader, although he apparently had a falling out with Hamas in the mid-1990s. Hamami was the speaker a t t he center of the dispute between HLF and Ashqar in 1994 when M ar z o o k a n d the Palestine Committee intervened. He was further identified as a ranking Hamas leader in the UASR book about Hamas found in Odeh’s office. Furthermore, the search of HLF offices uncovered a UASR publication that referred to Hamami as a Hamas leader. The publication, The Middle East Affairs Journal , HLF Search No. 108, was published in 1998 and stated that Sheikh Yassin assigned Hamami to establish a Hamas branch in the West Bank. It also reported that Hamami became the liaison be t w e e n t he Hamas command in the West Bank and the leadership in Gaza. Hamami was also videotaped with Baker and El-Mezain at

a 1990 fundraising event. On the video, Mushtaha exhibit 1, Baker specifically thanked Hamami for his presence. On another video, Infocom No. 67, Hamami

was seen at a school construction site thanking Baker, El-Mezain, and HLF for their support. T h i s evidence contradicted a sworn declaration from Baker wherein he had denied that he and other HLF board members had a ny connection with Hamas. With regard to the Ramallah Zakat Committee, which the PA documents linked to Hamas, both Levitt and Avi also test if i ed that Hamas controlled it. 2 5

The defe ndant s arguethat Avi r elie d on the im pr ope rly adm itt ed PA doc ume nts in 2 5 his tes tim ony. They are inco rre ct. Altho ugh Avi wa s ques tio ned about the PA doc ume nts , he indi cat ed that he had revie we d “m any rep ort s” about the Ramallah Zak at Com mi tte e. He als o 92 Case: 09-10560 Document: 00511687541 Page: 92 Date Filed: 12/07/2011No. 09-10560

Furthermore, the 1991 Elbarasse No. 22 letter to Baker, and statements at the P h i l a delphia meeting in 1993, also indicated that Hamas controlled the zaka t committee. The letter stated that “all of [Ramallah] is ours,” while Shabib stated at the P h i l a d elphia meeting, “We could say that the zakat committee is ours, including its management and officers.” Evidence seized from HLF included a letter from Baker addressed to the Ramallah Z a kat Committee’s director, Dr. Mah m o u d Al -Rumhi, whose name and telephone number also appeared along with several other people identified as Hamas members o n a l ist seized from Elbarrasse’s home. Elbarasse Search 24. The UASR journal found in HLF’s records identified still another member of t h e Ramallah Zakat Committee, Mahmoud Mosleh, as having been arrested by the PA along with several leaders

o f H amas. Similarly, the book about Hamas found in Odeh’s office al s o

2 6 identified Ramallah Zakat C o mmittee member Fadel Saleh Hamdan as one of the ranking Hamas members who had previously been arrested. In light of the above evidence, Shorbagi’s testimony and the PA documents

were cumulative of a large amount of evidence connecting Hamas to both HLF and the zakat committees. We acknowledge that during questioning and in its

clo s in g argument the Government highlighted some of the evidence that we h ave found to be erroneous l y admitted, but we believe that the other evidence was “formidable.” United States v. Steinkoenig , 487 F.2d 225, 229 (5th Cir. 1973).

sai d thatt he PA d ocum ents w ere“ add itio nal to my analys is. ”

Mo sle h als o app eare d in a video se ized fr om HLF wh ere a young boy in ki nder garte n 2 6 is inte rview ed at an HLF- sp ons ore d event

. The boy is ques tio ned about t h e d e ath of his fat her, and Mo sle h pr om pt s him to ans we r. The boy i s t o l d n o t t o f orget wh en he grow s up that his fat her wa s ki lled by the J e w s . Mul tip le video rec ord ings we re als o se ized fr om the zak at com mi tte es and intr oduc ed at tri al sho wi ng ki nder g a r t e n c ere mo nies wh ere child ren pr ete nded to b e s u i c i d e bom bers and san g so ngs pr ais ing Ha mas . Thes e video s we re cons ist ent with tes tim ony fr om Levitt an d Avi about Ha mas ’s so cial wi ng and its indo ctr inati on of child ren. The pr es ence of thes e video s at the zak at co m m i t t e e s a n d the par tic ipat ion of com mi tte e me mbe rs lik e Mo sle h in the cer em onies i s f u rth er evide nce of Ha mas influe nce over the pur por ted ly c harit able zak at com mi tte es . 93 Case: 09-10560 Document: 00511687541 Page: 93 Date Filed: 12/07/2011No. 09-10560

Rather than be left with grave doub t ab o ut the verdict, we conclude that the weight and cumulative nature of the other evidence at trial precludes a finding that the errors complained of had a substantial influence on the jury. See Kotteakos , 328 U.S. at 765.

2. Cumulative error For similar reasons, we also reject the defendants’ argument that the trial

errors constituted cumulative error. “[T]he cumulative er ror doctrine

. . . provides that an aggregation of non-reversible errors (i.e., plain errors failing to necessitate reversal and harmless errors) can yield a denial of the constitutional right to a fair trial, which calls for reversal.” United States v. Munoz , 150 F.3d 401, 418 (5th Cir. 1998). On claims of cumulative error, we “review the record

as a w hole to determine whether the errors more likely than not caused a suspe c t verdict.” Derden v. McNeel , 978 F.2d 1453, 1457 (5th Cir. 1992) (en banc). To be sure, this was not a perfect trial, and there were errors, as we have discussed. However, the Constitution does not guarantee a perf e c t trial, only

one that it is fair. See United States v. Lane , 474 U.S. 438, 445 (1986). We are convinced from our review of the record that the defendants received a fair trial. The defendants’ claim of cumulative error therefore fails. H. Jury charge Defendant Abdulqader next challenges the district court’s jury charge on the First Amendment. The Governm e nt’s evidence against Abdulqader 2 7 i n cluded approximately one dozen video recordings of his participati o n i n

De fen dant s Bake r, El-M ezain, and Od eh have ado pt ed the Firs t Ame ndm ent 2 7 argum ent in Abdulq ade r’s brie f. We conc lude , how ever, that the iss ue is inad equat ely brie fed as to them , and thus waived, beca use the brie f dis cus se s only Abdulq ade r’s pur por ted ly pr ote cte d sp eec h. See Uni ted States v. Cal dw el l , 302 F.3d 399, 421 n.19 (5t h Cir. 2002) (r efu sin g to cons ide r iss ue as inad equat ely brie fed wh ere def enda nt pr ovide d no analys is) ; cf

. Uni ted States v. Soli s , 299 F.3d 420, 458 n.14 0 (5t h Cir. 2002) (ho ldi ng def enda nt’ s att em pt to ado pt by ref

ere nce co- def

enda nt’ s se nten cing guide lines iss ue ins uff icie nt wh ere iss ue wa s fac t- sp ecif

ic)

. 94 Case: 09-10560 Document: 00511687541 Page: 94 Date Filed: 12/07/2011No. 09-10560

musical and dra m atic performances that referenced Hamas and contained Islamic or anti-Israel themes. The perf o r m a n c es occurred at various fundraising events that HLF sponsored. The Government’s theory at trial was that

one of Abdulqader’s roles in the c o n spiracy was to motivate audiences to contribute funds to HLF by performing pro-Hamas songs and skits. Most of the performances occurred before Ha m a s w a s de s i gnated as a terrorist organization, but th r e e w e r e recorded after the designation. The recordings before the designation tended to be obvious in their support of Hamas, expressly referring to both Hamas and killing Israelis. The recordings made after the designation

were less overt in their support, and the Government argued to the jury that the defendants made this change intentionally in order to avoid directly s h o w i ng support for a terrorist organization. Abdulqader contends on appe a l t h at his speech in the video recordings was protected under the First Amendment, and that the district court’s jury charge misstated t h e l a w a nd allowed the jury to convict him based solely on protected speech or association. “Because ‘[d]istrict courts enjoy substantial latitude in formulating a jury charge,’ we review ‘all challenges to, and refusals to give, jury instructio n s for abuse of discretion.’” United States v. Davis , 609 F.3d 6 6 3 , 689 (5th Cir. 2010) (alteration in original) (citation omitted). “We review a defendant’s objection to the jury instruction by assessing whether the district court’s charge, as a whole,

was a correct statement of the law and whether it clearly instructed the jurors

as to the principles of the law applicable to the factual issues confronting them.” United States v. Conner , 537 F.3d 480, 486 (5th Cir. 2008). We conclude that the charge, when read as a whole, properly guided the jury and correctly stated the law as it was to be applied to the facts of the case. Abdulqader was charged with, inter alia, conspiracy to violate 18 U.S.C. § 2339B, which prohibits knowingly providing material support or resources to

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a foreign terrorist organization. The statu t e also provides: “Nothing in this 2 8 section shall be construed or applied so as to abridge the exercise of rights guaranteed under the First Amendm e n t t o the Constitution of the United States.” § 2339(B)(i). The district court read both § 2339(B)(i) and the text of the First Amendment in its jury charge. It then instructed the jury as follows: 2 9 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 c ri m e simply on the basis of his beliefs, his expression of those beliefs, or his associations. The First Amendment, however, does not provide a defense to a crimin al charge simply because a person uses his associations , beliefs, or words to carry out an illegal activity. Stated anot h e r w a y, if a defendant’s speech, expression, or associations were made with the inten t t o w i l l

fully provide funds, goods, or services to or for the benefit of Hamas, or to knowingly provide ma t erial support or resources to Hamas, as described in the indictment, then t he First Amendment would not provide a defense to that conduct. (Emphasis added). As he did in the district court, Abdulqader argues that the last sentence emphasized above incorrectly stated the law because, although speech may be used to establish a defendant’s intent, the charge instructed that a defendant’s
spee c h , expression, or association are themselves crimes, provided that the defendant made them intending to p r o vi d e support to Hamas. Abdulqader asserts that most of his speech on the video recordings in evidence was protected and non-criminal because it pre-dated Hamas’s designation as a terrorist

The st atut e pr ovides , in relevant part : “Whoever know ingly pr ovide s mat eria l sup por t 2 8
or res ourc es to a for eign ter ror ist organi zatio n, or att em pt s or cons pir es to do so , sha ll be fine d unde r this tit le or impriso ned not mo re than 15 years , or both

. . . .” 18 U. S. C. § 2339B( a)( 1).

“Congr es s sha ll mak e no law res pec ting an es tablish me nt of reli gion, or pr ohibit ing 2 9 the fr ee exerc ise ther eof; or abrid ging the fr eed om of sp eec h, or of the pr es s; or the right of the peo ple pea ceab ly to ass e m b l e , and to pet itio n the Go vernm ent for a red res s of grievanc es .” U. S. C ON ST

. ame nd. I. 96 Case: 09-10560 Document: 00511687541 Page: 96 Date Filed: 12/07/2011No. 09-10560

organization. He f

u r t her asserts that the speech on the few tapes that postdated the designation was not criminal because it did not i n c it e i m minent lawless action. See Brandenburg v. Ohio , 395 U.S. 444, 447 (1969) (holding that the First Amendment does not protect speech that “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”). It is well established under First Amendment principles that there is no prohibition on “the evidentiary use of speech to establish the elements of a crime

or to prove motive or intent.” Wisconsin v. Mitchell , 508 U.S. 476, 489 (1993); see also United States v. Salameh , 152 F.3d 88, 111–12 (2d Cir. 1998). In addition, speech itself may be criminal under certain circumstances. As rele v a n t to the case at bar, for example, the Supreme Court recently upheld § 2339B in an as applied First Amendment ch a l l e n ge, holding that Congress could criminalize speech that provides material support to designated ter r o rists. See Holder v. Humanitarian Law Project , 130 S. Ct. 2705, 2724 (2010) (stating that Congress could “prohibit what plaintiffs want t o d o

—provide material support to [the designated terrorist organizations] in the form of speech”). The Court held that § 2 3 39B is not limited to prohibiting monetary support of terrorists, and the statute is tailored to reach only material support “coordinated with or under the direction of a designated foreign terrorist organization.” Id. at 2726. We recognize that the pre - 1 9 9 5 video recordings of Abdulqader’s speech could not themselves be criminal under Humanitarian Law Project because it

was not illegal at that time to support Hamas. A ssuming arguendo that the 30 language of the jury charge emphasized above could in isolation be read to allow the jury to consider that speech to be criminal, we conclude that the charge as

As note d above , H a m as wa s des ignate d as a sp ecia lly des ignate d ter ror ist 3 0 organi zatio n in January 1 9 9 5 , and it wa s des ignate d as a for eign ter ror ist organi zatio n in Oc tobe r 1997. 97 Case: 09-10560 Document: 00511687541 Page: 97 Date Filed: 12/07/2011No. 09-10560

a whole did not permit the jury to convict Abdulqader based on protected speech. See United States v. Klington , 875 F.2d 1 0 9 1 , 1 098 (5th Cir. 1989) (“[T]he
presence of an imprecise or misleading statement within the jury instruction does not by itself entitle defendants to a reversal.”). First, the district court correctly charged the jury on the elements of the offense. See id. (“Reversible error exists only if the jury charge, considered as a whole, misled the jury as to the elements of the offense.”). The court charged the jury that in order to convict the defendants, it had to find that (1) “two or more persons agreed to provide material support” to Hamas, (2) the defendant “knowingly became a member of the conspiracy with the intent to furthe r its unlawful purpose,” (3) “one of the conspirators knowingly committed at least one overt act,” and ( 4) t h e conspiracy “existed on or after October 8, 1997” and the defendant “w a s a member of the conspiracy on or after that date.” The d e fendants do not challenge this part of the charge, which accurately s e t th e parameters for a conviction, including the existence of a conspiracy after Hamas was designated as a terrorist organization. Second, the First Amendment portion of the charge specifically instructed the jury that the defendants could not b e convicted “simply on the basis of his b e l i e f s , [ o r] his expression of those beliefs.” If we assume the jury followed it s instructions, as we must, the jury would no t h ave convicted Abdulqader of conspiracy for his pre-1995 conduct because it knew that Hamas had not been designated as a terrorist organization. See Zafiro v. United States , 506 U.S. 534, 540 (1993) (“[J]uries are presumed to fol l o w their instructions.”) (internal quotation marks and citation omitted); Davis , 609 F.3d at 677. Moreover, the charge specifically limited the jury’s considerati o n o f the defendant’s speech to how it pertained to the elements of the offense as alleged in the indictment. The charge stated, in re l e vant part, that “if a defendant’s speech

. . . were made with the intent to

. . . knowingly provide material support

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or resources to Hamas, as described in the indictment ,” the First Amendment did not preclude a conviction. (Emphasis added). The indictment alleged that the § 2339B conspiracy began on or about October 8, 1997, the date that Hamas was designated as a foreign terrorist organization. It then charged as follows:

In furtherance of the con s p i racy, the defendants

. . . participat e d in fundraising events at various forums, including conventions, services at mosques, seminars and other pr o grams. The HLF sponsored speakers at these events whose mission was to raise funds for the HLF. Prior to the designation of HAMAS as a Foreign Terrorist Orga n iza t i o n , th e s p e akers sponsored by the HLF often praised the efforts of HAMAS and its violent activi t ies against Israel, and encou r a g ed financial support for those efforts. After HAMAS’ des ignation , upon instruction by the HLF, the speakers changed tactics by us i n g inflammatory language which was designed to support HAMAS and its violent activities without openly mentioning HAMAS. Some of the speakers sponsored by the HLF included founding HAMAS leaders, prominent HAMAS spokesmen and other speakers b e longing to the Muslim Brotherhood. Furthermore, at some of the fund-raising events, the speaker s , including the defendant Mufid Abdulqader, performed skits and songs which advocated the destruction o f the State of Israel and glorified the killing of Jewish people. (Emphasis added). The indictment thus described t h e kind of performances in which Abdulqa der ap peared and charged that the performances occurred at gatherings with the intent to raise money for H L F

. It further described how the perfo r m a n ces changed tactically after Hamas was designated as a terrorist organization, which is when the unlawful conspiracy began. The language in the First Amendment section o f t h e charge cabined the jury’s consideration of the speech to those circumstances. It thus directed consideration of the s p e e c h in the context of motive or intent. See Mitchell , 508 U.S. at 489. As a whole , the charge provided th a t the First Amendment was not a defense to speech that was made with t h e intent to support Hamas in the

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manner described in the indictment. The indictment included th e ch ange in tone after Hamas’s designation in order to conceal a course o f c onduct that became criminal after the designation. In other words, Abdulqader’s speech may have been prote c t e d prior to Hamas’s designation as a terrorist organization, but it became relevant to proving whether he joined the c o n s p ir a cy that began after the designation. By instructing the jury to consider the intent of the speech as alleged in the indictment, the charge merely permitted t h e j ury to determine whether the Gove r n m e n t ’ s theory of the case was correct and did not permit conviction based solely on speech. Finally, our conclusion that the district court’s charge properly guided the jury’s application of t h e l a w to the facts is supported by the way in which the Government argued its case to the jury in closing argument. The Government argued in closing that the video recordings of Abdulqader were evidence of his

e fforts to aid the fundraising for Hamas and were also evidence of h o w th e defendants changed their fundraising message after Hamas’s designation as a terrorist organization. Referring to the videos, the prosecutor stated: That person that Mufid Abdulqader pretended to kill wasn’t dressed as an Israeli soldier. He was dressed as a civilian in a suit. And this is the message that they were s e n ding, the Palestine Committee and the Ho l y L a n d Foundation was sending out to its audience before they toned it down after the Oslo Accords.
The Government then emphasized that the speech should be used in conjunction with determining the defendants’ intent: Now, the Defense attorneys have talked about, and I am sure they are going to talk about this again with you, freedom of speech. And freedom of speech is an incredib l e right that we have here in the United States. But the Defendants aren’t charged with what they said. They a r e c h a r g e d for what they did, and that is sending money to Hamas. * * * *

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They are perfectly right to say, “I support Hamas.” But when they start giving money to Hamas, then what they said can and will be used against them to determine their intent.
In sum, the court’s charge on the First Amendment may not be read in a

vacuum. The district court’s charge on the ele m e n ts of the offense, in conjunction with its express directive that speech alone cannot support a conviction and its limitation that the speech must be considered in relation to the indictment, rendered the charge a correct statement of the law to be applied to the issues confronting the jury. The First Amendment challenge to the jury 3 1 charge is therefore denied. 3 2 I. The search of HLF’s offices The defendants challenge on Fo u r t h Amendment grounds the Government’s seizure of property from HLF’s offices withou t a warrant. The Treasury Department, through OFAC, seized the property immediately after designatin g H LF as a terrorist organization and issuing a blocking order pursuant to IEEPA. See 50 U.S.C. § 1702(a)(1)(B). The FBI l a t e r ob tained a warrant from a magistrate judge to search the property. The defendants moved to suppress the evidence found in that subsequent search because OFAC lacked a warrant at the time of the initial seizure. The district court denied the motion, holding that the search and seizure

were permissible under an excepti o n a n a l ogous to administrative searches of

Abdulq ade r als o argues that the Go vernm ent intr oduc ed “ce rta i n a s s o ciat ional 3 1 evide nce” conc erni ng his fam ilial rela tio nshi p t o H ama s lead ers , and he ass ert s that being rela ted to a ter ror ist lead er is not a cri me . We se e noth ing in the dis tri ct cour t’s jury char ge, how ever, that ins tru cte d the jury it coul d cons ide r fam ilial rela tio nshi ps in its det erm inati on of guilt.
An ami cus brie f fil ed by a diver se gr o u p o f organi zatio ns chall enges the dis tri ct

3 2
cour t’s jury char ge on the subst antive violat ions of § 2339B bas ed on the Fifth Ame ndm ent’ s Du e Proc es s Claus e. Becaus e none of the def enda nts has rais ed this iss ue, we agree wi th the Go vernm ent that it is not pr ope rly bef ore u s . See Uni ted States v. McMi llan , 600 F.3d 434, 455 n.68( 5th Cir. 201 0). 101 Case: 09-10560 Document: 00511687541 Page: 101 Date Filed: 12/07/2011No. 09-10560

closely regulated i n d u s tries. The court further reasoned that the good faith exception to the exclusionary rule also p r e c l u ded suppression because OFAC reasonably relied on IEEPA when it initially seized HLF’s property, and the FBI reasonably relied on the warrant issued by the magistrate judge. We hold that the district court correctly denied the suppression motion but for different reasons. The defendants do not challenge the blocking order under the Fourth A m e n d m e n t. As we will explain, we conclude that the defendants’ privacy interests were greatly reduced by the unchallenged blocking order, that the Government had a strong special need to act quickly to prevent asset flight, and that the G o v e r n m e nt’s movement of HLF’s property into storage until obtaining a warrant was a minimal in t r u sion into the defendants’ diminished privacy interests. Under these circumstances, the Govern m e nt’s conduct did not violate the Fourth Amendment. On appeal of a motion to suppress, “the district court’s findings of facts are reviewed for clear error, viewing the evidence in the light most favorable to the government. The district court’s conclusions of law are reviewed de novo .” United States v. Hernandez , 647 F.3d 216, 218 (5th C ir . 2 011) (internal quotation marks and citation omitted). W e vi e w t he facts underlying the suppression decision in the light most favorable to the Government as the prevailing party. United States v. Howard , 106 F.3d 70, 73 (5th Cir. 1997). We may a ffirm the district court’s ruling on any ground supported by the record. Hernandez , 647 F.3d at 218. The Government bears the burden of showing that a warrantless search or seizure was valid. United States v. Gomez-Moreno , 479 F.3d 350, 354 (5th Cir. 2007). In this case OFAC initially acted under IEEPA and the blocking order to

secure HLF’s property. Pursuant to IEEPA , the President is authorized to declare a national emergency “t o deal with any unusual and extraordinary threat” to the United States originating in substantial part in a foreign state.

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See 50 U.S.C. § 1701(a). The President is empowered to “investigate, regulate,

or prohibit” transactions in foreign exchange, banking transfers, and importing

or exporting currency or securities. § 1702(a)(1)(A). In addition, the President may investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, o r t r ansactions involving, any property in which any foreign country or a national thereof has any interest by any person, or w i t h r e spect to any property, subject to the jurisdiction of the United States[.] § 1702(a)(1)(B). The President is also authorized to issue necessary regulations to further IEEPA’s purpose, which the President has delegated to the Treasury Department. See § 1704. OFAC is the office that is principally responsible for administering the Government’s orders and regulations under IEEPA. As relevant to this case, and as noted above, in 1995 the President issued Executive Order 12947 under IEEPA designating, inter alia , Hamas as a SDT. See 60 Fed. Reg. 5079 (Jan. 23, 1995). In 2001, in response to the terrorist

a t t a cks of September 11, the President issued Executive Order 132 2 4 recognizing a continued thr e at to the national security, foreign policy, and economy of the United States and declaring a national emergency to deal with that threat. See 66 Fed. Reg. 49079 (Sept. 23, 2001). The Executive Order also f o u n d “that because of the pervasiveness and expansiveness of the financ i a l foundation of foreign terrori s t s, financial sanctions may be appropriate for those f orei gn p ersons that support or otherwise associate with th e s e f orei gn t errori s t s . ” Id. The Executive Order designated various individual s a n d o rganizations as specially de s i gn a t e d global terrorists (“SDGTs”). It further provided for the 3 3

Thein itia l l istof

S DG Ts hass incebe en ame ndedt o i nclud e H ama s. 3 3 103 Case: 09-10560 Document: 00511687541 Page: 103 Date Filed: 12/07/2011No. 09-10560

designation of additional SDGTs if organizations or persons are found to “act for or on behalf of” or are “owned or controlled by” designated terrorists, or if they “assist in, sponsor, or provide

. . . support for,” or are “otherwise associated” with them. See id. The Executive Order t h ereby authorized the Government to freeze or block the as s e t s o f o rganizations or persons that supported or were associated with designated terrorists. The ramifications of being named a SDT subject to a blocking order are significant. Once assets have been blocked, they no longer may be used unless OFAC issues a license authorizing the SDT to engage in transactions involving the blocked assets. See 31 C.F.R. § 501.801. As cogently described by the Ninth Circuit, “[b]y design, a design ation by OFAC completely shutters all domestic operations of an entity. All assets are frozen. No person o r o r g a n i z a tion may

c o n d u c t any business whatsoever with the entity, other than a very narrow category of actions such as legal defense.” Al Haramain Islamic Found. v. U.S. Dep’t of the Treasury , __ F.3d __, N o . 10-35032, 2011 WL 4424934, at *10 (9th Cir. Sep. 23, 2011). A p art y s ubject to a designation may seek administrative reconsideration and limited judicial relief, but the “design atio n is indefinite” and the limited remedies “take considerable time.” Id. ; see also 31 C.F.R. § 501.807. The Treasury Department designated HLF as a SDT and a SDGT o n December 3, 2001. On the same day, OFAC i s s u e d a blocking notice to HLF stating in relevant part: [A]ll real and personal property of [HLF], including but not limited to all offices, furnishings, equipment and vehicles, as well as funds and accounts in which [HLF] has a ny i n t erest, are blocked. All assets o f [ H L F], including but not limited to bank, charge and investment accounts, securities, and safe deposit boxes at any financial institution located in the United States or organized under the laws of the United States, including their overseas branches, are blocked. Blocked property may not be transferred, withdrawn, exported, paid, or otherwise dealt in without prior authorization from OFAC.

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All transactions involving property in which [HLF] has any int erest, including any property of third parties in the possession or control of [HLF], are prohibited without specific authorization from OFAC. As a consequence of this action, activities in, use of, and occupation of [HLF] offices, including this facility and each [HLF] office subject to United States jurisdiction, are hereby prohibited.

. . . No property m ay be removed from the premises other than property that is clearly the personal property of the individual requesting to remove the property from the premises. Persons who are unable to remove their personal belongings at this time must contact OFAC in writing

. . . to make arrangements to secure t h eir belongings at a later date.

. . . R e quests for specific licenses for payment of outstanding financial obligations owed by [HLF], such as salary, rent and utility payments, among others, must also be made in writing[.]
The notice also advised tha t i f H L F wished to seek a license to engage in any transaction involving blocked property, or to challenge the designation as a SDGT, it should refer to specified regulations for the proper procedure. In order to effectuate the blocking notice, OFAC personnel, accompanied by federal officers, went the next day (December 4, 2001) to the HLF offices in Richardson, Texas; Bridgeview, Illinois; San Diego, California; and Pa t e r son, New Jersey. OFAC served the notices at each location on HLF representatives, who signed the notices and permitted entry into the off i ces. In Richardson, Defendant Baker signed the notice but initially denied permission to enter. Two hours later, after consulting wi t h c o u n sel and after a televised public announcement revealing HLF’s designatio n , B ak er allow e d O FA C into th e of fice. Defendant El-Mezain similarly permitted entry into the San Diego office after consulting with counsel. The recor d s h ows that at each location independent contractors acting on behalf of OFAC took possession of HLF’s assets and moved them to storage. There is no indication that anyone from O FA C or the FBI examined the property at that time. On appeal, the defend ant s c o nt e n d th at OFAC’s warrantless entry into the H LF offices was unconstitutional because nothing in IEEPA allowe d th e

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Government to enter private proper t y t o e ffectuate a seizure or search. The Fourth Amendment provides that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated

. . . .” U.S. C O N S T

. amend. IV. The Supreme Court has recognized that the Fourth Amendment “protects two types of expectations,

one involving ‘searches,’ the other ‘seizures.’” Unit e d S t a tes v. Jacobsen , 466 U.S. 1 0 9 , 1 1 3 ( 1 984). “A ‘seizure’ of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.” Id. A “search,” on the other hand, “occurs when an expe c t a t i on of privacy that society is prepared to consider reasonable is infringed. ” I d

. The defendants argue, consistent with these principles, that the Government’s entry into the HLF offices interfered with HLF’s possessory int ere s t s an d infringed the privacy of HLF and its employees. The Government responds, in part, that a warrant is not required before OFAC issues a blocking order under IEEPA. We need not resolve that question, however, because the defendants do not challenge under the Fourth Amendment OFAC’s issuance of the blocking order, the scope of the order, or OFAC’s ability to iss u e such an order without a warrant. But see Al Haramain , 2011 WL 4424934, at *20–25 (holding that a warrant was required before OFAC issued

a blocking order under IEEPA, and the Government f ailed to show the
ap p lic ab ility of an exception to the warrant requirement). We therefore presume that the blocking order was properly issued. Because the defendants do not challenge the b l o c k ing order, OFAC’s implem e ntation of it must be assessed by comparing the order’s effect on the defendants’ privacy interests with any special needs of the Government under IEEPA. We think this balancing of interest does not support suppression of the evidence in this case.

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“Warrantless searches and seizures are per se unreasonable unless they fall within a few narrowly defined exceptions.” United States v. Kelly , 302 F.3d 2 9 1 , 2 9 3 (5th Cir. 2002) (internal quotation marks and citation omitted). T h e Government contends here that the “special needs” exceptio n to the warrant requirement justified the search and seizure. See, e.g., Griffin v. Wisconsin , 483 U.S. 868, 873 (1 9 8 7) (recognizing that a warrantless search may be justified “when sp e cial needs, beyond the normal need for law enforcement, make the warrant and probabl e -cause requirement impracticable”) (internal quotation marks and citation omitted). The Supreme Court has applied the special needs exception in a variety of circu m s t anc e s wh e n th e G overn m e nt p erforms functions beyond typical law enforcement or crime control and when the intrusion into the privacy interest at stake is minimal. See, e.g., Illinois v. Lidster , 540 U.S. 419, 427–28 (2004) (holding that a warrantless highway ch e c k p o i nt to investigate fatal hit

- and-run accident was valid where “stops interfered only minimally with liberty of the sort the Fourth Amendment seeks to protect”); Mich. Dep’t of State Police v. Sitz , 496 U.S

. 444, 451 (1990) (upholding sobriety checkpoints where intrusion was “slight”); O’Connor v. Ortega , 480 U.S. 709, 725 (1987) (plurality) (permitting warrantless searches of government employee’s work area for workrelated purposes where employee’s privacy interests in office “are far less than those f ound at home or in some other contexts”); United States v. Martinez-Fuerte , 428 U.S. 543, 565 (1976) (upholding warrantless fixed Border Patrol checkpoint where stop c a u s e d “minor interference” with Fourth Amendment interests). In Al Haramain , the Ninth Circuit held that the special needs exception did not apply in the context of the Government’s issua n ce of a blocking order under IEEPA. The court noted that “[t]he exception requires a weighing of the nature and extent of the privacy i n terest at hand against the nature and immediacy of the government’s concerns and the efficacy of the proc e dures

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employed in meeting those concerns.” Al Haramain , 2011 WL 4424934, at *20 (citing Bd. of Educ. v. Earls , 536 U.S. 822, 830–34 (2002))

. T h e c o urt there concluded that the priv a t e e n t i ty had a substantial privacy interest that was severely restricted by the blocking order because the order effectively shut down all business operations in definitely, and that the Government failed to show why

a warrant should not be required when balanced against that interest. Id. at *22–23. We agree with the Ninth Circuit’s assessment of the debilitating effect of

a blocking order, but because t h e defendants have not challenged the order in t h is case, our analysis begins at a different point than Al Haramain , a n d th e applicable balancing of interests yields a different result. Here, the unchallenged blocking order gave the Government complete control over both HLF’s assets and the premises and reduced the defendan t s ’ interests to a minimum. As the Ninth Circuit recognized in Al Haramain , the significant effects of a blocking order are “ by design. ” Id. at * 22 (“[T]here is no l i m i t ed
scope or scale to the effect of the blocking order.”). Indeed, a “designation [as a SDT] is not a mere inconvenience or burden on certa i n property interests; designation indefinite ly renders a domestic organization financially defunct.” Id. at *10. Further, “[a] bloc king order effectively shuts down the private entity.” Id. at *22. The text of the blocking order in this case demonstrates the Government’s control and the virtual elimination of any possessory and privacy interests held by the defendants in the assets and premises of HLF

. T h e b l ocking order expressly directed all persons to leave the offices. It prohibited the defendants from engaging in any activity involving HLF’s property, and it even prohibited the defendant s f

ro m o ccup yin g th e p re mi s e s witho ut O FA C ’ s p rior authorization. The warrantless imposition of these conditions has not been contested h e re. Unlike in Al Haramain , we are therefore faced with a presumptively valid order

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that stripped the defendants of any possessory interests in the HLF offices and assets. Any remaining privacy interest that the defendants had was minimal, and, as we di scuss below, was protected by the subsequent warrant obtained prior to the Government’s search. Balanced against the defendants’ significantly diminished privacy interests is the Government’s “extremely high” interest in p r e v enting actions that could fa c ilitate terrorism. Al Haramain , 2011 WL 4424934, at *23. An important purpose of a blocking order is to prevent asset flight, which was a genuine concern in this case. The evidence here showed that the defendants had been funneling millions of dollars to organizations associated with Hamas. They

were capable of quickly transferring large sums of money by wire trans f er to

overseas bank accounts controlled by HLF and others. These accounts were in locations such as the West Bank and Gaza, where they were likely to be beyond the reach of a judicial warrant. The Government therefore had a strong interest in movi n g qu i c k l y to prevent the flight of assets that could be used to further terrorist activity. See id. at *23 (recognizing that “‘asset flight’ is a legitimate concern”). In addition to considering the competing interests of the defendants and the Government, we also consider the nature of the Government’s intrusion into the defendants’ interests. We address here an uncontested blocking order that h a s c o mp reh e n s ively re s trict e d the defendants’ privacy and possessory interests

. Vi e w ed objectively, therefore, we believe that the Government’s mere transfer of HLF’s property from the offices to a storage facility pursuant to the blocking order, w ithout invading the contents of the material, did not intrude into the defendant’s privacy or possessory rights any mor e t h a n was reasonable under the initial blocking order. See Jacobsen , 466 U.S. at 115 (“The reasonableness of an official invasion of the citizen’s privacy must be appraised on the basis of the facts as they existed at the time that invasion occurred.”).

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We stress the importance of the fact that the Government took custody of the property without searching it and secured it to prev e nt unauthorized use, loss, or destruction. As we have said, the Government was already permitted by IEEPA and the blocking order to control the property and the premises, and its t r ansfer of the assets to storage did not further circumscribe the defen d a n t s ’ interests. Had the Government actually examined the property before obtaining a warrant, this might be a different case. 3 4 F urthermore, to the extent that the defendants retained any privacy interests in the materials s e i z e d by the Government, those interests were adequately protected by the warrant obtained before the Government actually searched the materials. That warrant s e p a rated the search of HLF’s property from the initial seizure, which we think adds to the overall reasonableness of the G o v e rnment’s action and of the district court’s denial of the defendant s ’ suppression motion. The warrant affidavi t s ub mitted to the magistrate judge did not rely on, or refer to, evidence seized by OFAC from the HLF offices as a

Relying on G. M. Leas ing Corp

. v. Uni ted States , 429 U. S. 338 (197 7), the def enda nts 3 4 argue that me rely beca use the Go vernm ent has the pow er to bloc k its ass ets d oes no t me an that it may ente r private pr ope rty to se ize the ass ets

. In G. M. Leas ing , the Sup rem e Court held t h a t t h e G o v e r nme nt’ s pow er to levy taxes and to se ize pr ope rty in sat isf act ion of tax liens did not give the Go vernm ent pow er to ente r private pr ope rty wi thou t a wa rra nt to se ize the pr ope rty. Id. at 354. The cir cum st ance s of the ins tant cas e are dis tinguis habl e . G. M. Leas ing conce rned“the nor malenfor cem ent of the tax law s. ” Id. The inst ant cas e, how ever, goes beyond the pale of norm a l l aw enf orc em ent beca use IEEPA and the se izure here we re des ignedto pre vent the mo veme nt of ass ets t hat coul d be use d to fa cili tat e terror istactivit y and cam e aft er a Pr es ide ntiald ecla rat ion of a na tio nal em ergenc y. See, e. g., Hu ma nita ri an Law Proje ct , 130 S. Ct. at 272 4 ( “ [ T] he Go vernm ent’ s inte res t in com bati ng ter rorism is an urgent objec tive of the highes t ord er. ”) ; Cass idy v . Chertof f , 471 F.3d 67, 87 (2d Cir. 2006) (S oto mayo r, J.) (up holding wa rra ntle ss se arc hes d e s i gned “to pr ote ct fer ry pas se ngers and cre w fr om ter ror ist act s” ); Ma cWa de v. Kel ly , 460 F.3d 260, 270–75 (2d Cir. 2006) (ho ldi ng cons t i tut ional sus pic ionle ss se arc hes of pas se nger baggage on sub wa y to pr event ter ror ist att ack); In re Sealed Case , 310 F.3d 717, 746 (FISA Ct. Rev. 2002) (f indi ng in cont ext of FISA that the “nat ure of the ‘em ergenc y,’ wh ich is sim ply anot her wo rd for thr eat, tak es the mat ter out of the real m of ord inary cri me cont rol” ). Mo reover, the bloc ki ng ord er in this cas e, unlik e the tax liens in G. M. Leas ing , res tri cte d the def enda nts ’ privacy right s in their pr em ise s. We find G. M. Le as ing

t o b e i napp os ite

. 110 Case: 09-10560 Document: 00511687541 Page: 110 Date Filed: 12/07/2011No. 09-10560

basis for probable cause to search. The warrant affidavit sta ted only that the i nv e s tigating officer had reviewed an inventory from the initial seizure an d noted that various materials had been seized, such as “desks, f i l es, books, binders, computers, telephones, fax machines, miscellaneous documents, and other items that HLF used to facilitate its ac t ivi ti e s . ” Nothing in the record suggests that the investigating officer misled the magistrate j u d g e when applying for the warrant, and we believe the Government properly relied on the warrant for purposes of the search. See, e.g., United States v. Leon , 468 U.S. 8 9 7, 922–23 (1984); United States v. Sibley , 448 F.3d 754, 757 (5th C i r . 2 0 0 6) (police may not rely on a warrant if the affiant misled the magistrate judge with information he knew was false); United States v. Shugart , 117 F.3d 838, 843 (5th Cir. 1997) (“‘evidence obtained by law enforcement officials acting in objectively reasonable good-fai t h reliance upon a search warrant is admissible’”) (citation omitted). In sum, th e Government’s broad control over the defendants’ premises and property afforded by the blocking order and IEEPA—control which has not been challenged by the defendants—greatly reduced the defendants’ possessory and
p riv a cy interests. In light of the Government’s strong interest in combating terrorism, and the minimal intrusion here to the defenda n t s ’ diminished interests, we conclude that the Government’s movement of HLF’s property from the HLF offices into a storage facility until it obtained a judic i a l w arrant to search the materials did not infringe the defendants’ Fourth Amendment rights. We therefore affirm the district court’s denial of the suppression motion. J. Defendant Elashi’s double jeopardy issue We next address a double jeopardy claim by Defendant Elashi, who argues that his conspiracy convictions in the instant case violate the Double Jeopardy Clause of the Fifth Amendment because he was convicted of conspiracy in a separate case in 2006. In the 2006 case, Elashi was convicted in the Northern

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District of Texas for, inter alia , conspiracy t o d e al i n p roperty of a specially designate d terrorist, in violation of IEEPA, 50 U.S.C. §§ 1701–1707, and Executive Order 12947; substantive violations of that prohibition; and conspiracy and substantive money laundering offenses related t o t he SDT violations. See United States v. Elashyi , 554 F.3d 480, 491 & n.3 (5th Cir. 2008). The d e f e n d a n ts in that case were Elashi; four of Elashi’s brothers; his cousin, Nadia Elashi; Nadia’s husband, Mousa Abu Marzook; and Elashi’s Texas-based computer company, Infocom Corporation. Elashi’s 2006 convict ion stemmed from financial transactions between Marzook and Infocom. In the early 1 990s, Marzook made investments in Infocom of several hundred thousand dollars that were designated as loans, and he received interest payments in return. See id. at 490. Infocom later changed its books to reflect that the loans came from Nadia, and interest payments were made to her but deposited in Nadia and Marzook’s joint bank account. Id. After Marzook w a s identified in a newspaper article as a Hamas leader, Infocom recorded a $50,000 check from Marzook as a loan from Nadia

. M a r z o o k was subsequently arrested while trying to enter the United States in July 1995, and he was designated as a SDT in August 1995. Thereafter, the interest payments to Nadia and Marzook’s joint account stopped for a while but then resumed as deposits in an account solely in Nadia’s name . I d

. a t 4 91. The payments continued until 2001 when OFAC issued a blocking order instructing Infocom to freeze funds in which OFAC determined that Marzook had an interest. Id. Elashi argues in the instant appeal that his convictions in this case for conspiracy to provide material support to Hamas (count 1), conspiracy to violate IEEPA (count 11), and conspiracy to commit money laun derin g (count 22) violate the Double Jeopardy Clause because the conspiracies substantially overlap with his conspiracy convictions from the 2006 case. Whether a prosecution violates

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the Double Jeopardy Clause is a question of law that we review de novo . United States v. Delgado , 256 F.3d 264, 270 (5th Cir. 200 1). The Fifth Amendment’s Double Jeopardy Clause “protects against a second prosecution for the same offense after conviction.” Brown v. Ohio , 432 U.S. 161, 165 (1977) (internal quotation marks and ci t a t i o n omitted); United States v. L e vy , 803 F.2d 1390, 1393 (5th Cir. 1986). In a conspiracy case, the central issue for double jeopardy purposes is whether there was one agreement and one conspiracy or more than one agreement and more than one conspiracy. United States v. Rabhan , 628 F.3d 200, 204 (5th Cir. 201 0). “The defendant carries the initial burden of establi s h i n g ‘ a prima facie nonfrivolous double jeopardy claim’ that the two conspiracies charged are in fact

a single conspiracy and therefore charge a single offense.” Id. (citation omitted). “If a defendant comes forward with a prima facie nonfrivolous double jeopardy claim, then the burden of e s t ablishing that the indictments charge separate crimes is on the government.” Delgado , 256 F.3d at 270. “To determine whether the alleged conspirators entered into more than one agreement, we evaluate five factors: 1) time; 2) persons acting as co-conspirators; 3) th e statutory offenses charged in the indictments; 4) the overt acts charged by the government or any ot h e r d e s cription of the offense charged that indicates the nature and scope of the activity that the government sought to punish in each case; and 5) places where the events alleged as part of the c o n s p i r a c y took place.” Id. at 272. Because no single factor is determinative, we must consider all of them. Id

.

1. Time The time period for the conspiracies charged in the 2006 case (August 1995 to July 2001) was wholly contained within the time period charged in the instant

case for the IEEPA and money launderi n g c onspiracies (January 1995 to July 2 0 0 4) and the material support conspiracy (October 1997 to July 2004). “An overlap in ti m e periods between two alleged conspiracies favors a finding of a
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single conspiracy, especially when that overlap is substantial.” Rabhan , 628 F.3d at 205 (finding that an overlap of twenty-one months was substantial and f av o red a finding of a single conspiracy). The overlap of nearly four and s i x years in the two cases is substantial and favors a finding of a single conspiracy.

2. Co-conspirators In the 2006 case, Elashi was charged with con s p iring with his brothers, his cousin Nadia, Marzook, and Infocom. Those co-conspirators were also named as co-conspirators in the instant case. The Government concedes the overlap but argues that the instant case involves many more conspirators, a nd that the common co-conspirators played different roles in the conspiracies. An overlap in personnel participating in conspiracies tends to indicate a single conspiracy. Id. at 205. Nevertheless, we agree with the Government that the key co-conspirators—most notably the co-defendants, Baker, El-Mezain, Abdulqader, Odeh, and the corporation, HLF—did not participate in Elas h i ’ s first conspiracy. The nature of the overlapping co-conspirators’ participation is relevant to finding a single conspiracy, especially when the co-conspirators are the “central characters,” Levy , 803 F.2d at 1395, or the “key personnel” in both

cases. Rabhan , 628 F.3d at 205. If the central figures of the cases are different,

or if they serve different functions f o r p u rposes of the conspiracies, it is less likely that there is a single agreement. See United States v. Guzman , 852 F.2d 1117, 1120–21 (9th Cir. 1988) (finding that “the roles performed by Guzman and Serrano i n t he two conspiracies were quite different” and therefore “do[] not compel a finding that a single conspiracy existed”). In the first case, the central characters were Infocom, Nadia Elashi, and Marzook insofar as the conspiracy involved payments from Infocom to Nadia in which the real party i n interest was Marzook. Elashi was implicated in the conspiracy in his role at Infocom. Marzook was the designated terrorist whose property made the defe n d a n t s ’ actions illegal. In the instant case, the key

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characters in the conspiracy were those connected to HLF who were involved in raising donations in support of Hamas. Elashi was implicated in the conspiracy for his role as an HLF founder and officer, and Hamas was th e d e s i gnated terrorist. In the 2006 case, there were a limited number of participants in the conspiracy and the purpose o f t h e a gr eement was confined to dealing in the property of Marzook, whereas the instant conspiracy involved different ke y parti c i p a n ts with the much broader purpose of aiding all of Hamas through HLF. The central characters of the conspiracy in this case are not the same as those in the 2006 case. See Rabhan , 628 F.3d at 207 (“[T]he overlap of central characters” is “more important than the number of overlapping characters.”). We conclude that the presence of some overlap in co-conspirators does not weigh in favor of finding a single conspiracy.

3. Statutory offenses Next, in both prosecutio n s Elashi was charged with money laundering offenses in violation of 18 U.S.C. § 1956. He was also charged in both cases with conspiracy to violate IEEPA. The Government contends that the IEEPA conspiracies were different because the indictment in the 2006 case charged a general conspiracy under 18 U.S.C. § 371, while the IEEPA conspiracy in the 3 5 i n s t a nt case was charged under IEEPA’s specific conspiracy provision in 50 U.S.C. § 1705. We agree with Elashi, however, that the IEEPA conspiracy in the instant case necessarily relied on the general conspiracy statute of § 371 because the specific IEEPA conspiracy provision of § 1705 did not become effective until 2007, after the indictment was returned in this c a se. See Pub. L. No. 110-96, § 2(a), 121 Stat. 1011, 1011 (Oct. 16, 2007).

“If tw o or mo re per so ns cons pir e . . . to com mi t any off ens e agains t the Unit ed Sta tes 3 5

. . . or any agency ther eof in any man ner or for any pur pos e, and one or more of suc h per so ns do any act to eff

ect th e o bject of the cons pir acy, each shall be fine d unde r this tit le or im priso ned not mo re than five years , or both .” 18 U .S .C. § 371. 115 Case: 09-10560 Document: 00511687541 Page: 115 Date Filed: 12/07/2011No. 09-10560

The Government nevertheless argues that there were tw o c o n spiracies because the instant case also charged Elashi with conspiracy to provide material support to a foreign terrorist organization, in violat i o n of 18 U.S.C. § 2339B, which was not an offense charged in the 2006 case. “Additional charges in one

case may still lead t o a f inding that there is only one conspiracy, particularly when ‘the statutes that do not o v e rl a p a r e related.’” Rabhan , 628 F.3d at 207 (quoting Levy , 803 F.2d at 1392). The conspiracies charged under IEEPA, 50 U.S.C. § 1705, and the material support statute, 18 U.S.C. § 2339B, are related insofar as they both prohibit support for designated terrorist organizations. The stat u t o ry o f

f enses charged in both the instant case and the 2006 case are therefore the same or similar. While this would militate toward finding a single conspiracy, we must be mindful that “[i]t is possible to have two different conspiracies to commit exactly the same type of crime. ” United States v. Thomas , 759 F.2d 659, 666 (8th Cir. 1985). We t h i n k that is the case here. Elashi was essentially charged in both

cases with two similar crimes of aiding a designated terrorist, but the designated terrorist and the purpose of each offense were not the same. See Guzman , 852 F.2d at 1121 (finding two separate conspiracie s despite identical statutory charges where “[t]he goals of the two conspiracies

. . . wer e n o t i d e nt ical”); see also United States v. Coscarelli , No. 98-21120, 2000 WL 284044, at *3 (5th Cir. 2000) (“[W]here the second conspiracy has a different goal than the first, a second prosecution is notbarred by double jeopardy.”). The 2006 conspiracy involved Marzook as the de s i gn ated terrorist, and the goal of the conspiracy was to make payments to him from Infocom as a result of his investment in the company. The payments varied in amount between $1,000 and $15,000. Elashyi , 554 F.3d at 490. In the instant case, the designated terrorist was Hamas, and the goal was to provide material support for H a mas by raising funds through HLF’s charitable network and by funneling money to

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Hamas organizations, like the zakat committees. The jury found that as a result of the c o n s p iracy the defendants provided approximately $12.4 million in support of Hamas. To be sure, Marzook was present in both cases, and evidence of Elashi’s transactions in the 2006 case also served as evidence of his intent in the instant case. However, Elashi was convicted of dealing in the prope r ty of Marzook in th e 2 0 0 6 case, while he was convicted of the offense of providing support for Hamas in th e i n s t a nt case. We conclude that because the goals of the two offenses differed, the similarity in statutory charges does not compel a finding that there was a single conspiracy.

4. Overt acts Elashi concedes that the overt acts charged in the two cases were dif f erent, b ut he argues that a single conspiracy may be found because the ov e r t a c t s i n both cases span similar time periods and are similar in character. Although he is correct that a single conspiracy may be found even without overlapping acts, the “nature and scope of the allegedly separate conspiracies ” must permit a finding that there was a single objective and a single agreement. Rabhan , 628 F.3d at 207 (internal quotation ma r k s a n d c itation omitted). For example, in Rabhan we held that there was a single conspiracy even though the Government charged different overt acts because the defendant had engaged in the multiple acts as part of a course of c o n d u c t w i t h a single objective. See id

. at 207–08 (holding that defendant’s “overall strategy to form a comprehensive integrated catfish growing and processing operation” showed that the fraudulent loans in both Georgia and Mississippi were interrelated and favored a finding of a single conspi r a c y); see also Levy , 803 F.2d at 1395–96 (finding a single conspiracy where a series of fraudulent loans were obtaine d i n o r der to hide the fact of another series of fraudulently obtained loans). We disagree with Elashi that the overt acts charged against him in both cases were sufficiently similar in nature to show that there was a single conspiracy.

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In the 2006 case , the indictment charged Elashi with, inter alia , ten separate check and wire transfers from Infocom’s ba n k accounts to bank accounts held in Nadia’s name. In the ins t a n t case, the overt acts included specific wire transfers from HLF bank accounts to the seven zakat committees alleged to be operated on behalf, or under the control, of Hamas. The indictment in this case also charged that f u n d s were wired from HLF bank accounts in Texas to the HLF office in the West Bank and Gaza, and then re-distributed to the zakat committe e s a n d to the family members of individuals who had been either “martyred” or jailed for terrorist activities. As noted above, the objective in the first case was to deal in the property of the specially designated terrorist Marzoo k b e c a u s e of his investment in Infocom, whereas the agreement in the instant case was to raise funds through HLF and funnel the money to Hamas,

a different designated terrorist, in support of Hamas’s socia l wing. Although Marzook was a Hamas leader, the two conspiracies alleged direct benefits to two different d esignated terrorists. Cf. United States v. Cihak , 137 F.3d 252, 258 ( 5 t h Cir. 1998) (finding two separate conspiracies where, inter alia , “the o v e r t acts alleged in the two cases are different and

. . . t h e a c t i o ns of the separate conspiracies alleged in the other case did not advance the conspiracy alleged in this case and vice versa”) (internal quotation marks and citation omitted). Elashi argues that because the same evi d e n c e of financial transactions between Infocom and Marzook was introduced at both the first and second trials, the conspiracies were the same. We are not persuaded. The evidenc e w a s admitted in this case solely to show El a s h i ’ s intent or state of mind under Federal Ru l e o f Evidence 404(b), and the district court gave a proper limiting instruction. See F E D

. R. E V I D

. 404(b) (Evidence of prior a cts is admissible “as proof of mo tive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident

. . . .”); cf. United States v. Felix , 503 U.S. 378, 386

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(1992) (“[A] mere overlap in proof between two prosecutions does not establish a double jeopardy violation.”). Relying on our decision in Levy , Elashi argues that the introduction, under Rule 404(b), of evidence of acts underlying one conspiracy a t the trial for a second conspiracy proves the existence of a single conspiracy. This may be true under some circumstances, but Elashi’s statement of the law is too broad. See United States v. Deshaw , 974 F.2d 667, 675 & n.47 (5th Cir. 1992) (recognizing that evidence may be introduced under Rule 404(b) under circumstances that do not implicate double jeopardy). In Levy, 803 F.2d at 1392, the defendants were acquitted in the first trial of c o n s piracy to misapply funds and to make false statements in connection with loans. They w e r e then prosecuted at a second trial for conspiracy to make false statements to a bank and to defraud the United States a n d t h e FDIC. Id. Evidence concerning the overt acts underlying the second trial had previously been offered in the first tria l

. I d

. a t 1395. The transactions involved in the two cases were part o f a c o n tinuing course of fraudulent conduct and were designed t o hide the larger scheme. See id. at 1396. For this reason, we held that the Government’s prior introduction of the

same evidence under Rule 404(b) at the first trial supported a single conspiracy. Id. We found that the transactions from both cases “are related” and that “the record reveals that the acts involved in both alleged conspiracies are the same.” Id. ; see also United States v. Nichols , 741 F.2d 767, 772 (5th Cir. 1984) (series of

n e arly identical drug shipments forming basis of three separate conspiracy indictments offered under Rule 404(b) in prosecution for fourth conspiracy to import drugs s h o w ed a single conspiracy to commit multiple violations of the drug control law). As explained above, we do not see a similar relationship here indicating a single agreement and a common objective because the transactions in the instant case—wire transfers to zakat committees in support of Hamas’s social wing—do not further or advance the conspiracy in the first case to transfer

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funds to Marzook. Moreover, the acts involved in both cases were not the same. We conclude that this factor does not support a finding of a single conspiracy. 3 6

5. Place Finally, both conspiracies were alleged to have occurred in the Dallas Division of the Northern District of Texas. Ela s h i a l s o p o ints out that the principals of both cases—Infocom and HLF—were located across the street from each other in Richardson, Texas, where all the transactions originated. Although there is a clear overlap of the conspiracies in Texas, the Government argues that the place of the two conspiracies is different because the overt acts in the first case were domestic transfers from Infocom’s account to N a dia’s account, whereas the i n s t a n t case is broader geographically and involved international transfers from HLF to the zakat comm i t t ees in the West Bank. When conspiracies “overlap geographically, it is appropriate to consider where they are based as an indicator of whether the geographic overlap is significant.” Rabh a n , 6 2 8 F

. 3 d at 208. The Government has not shown that the “base of operations” for both conspirac i es was anywhere other than Texas, where both corporate entities and most of the defendants were located. Therefore, the place of decision making in both ca s e s w a s th e same, which militates in favor of finding a single conspiracy. 3 7

Elashi also ass ert s that the Gover nme nt’ s argument on app eal thattherewer e tw o 3 6
cons pir acie s conf

lict s wi th its pos itio n in the dis tri ct cour t that the tra nsa cti ons fr om the fir st cas e we re intr ins ic to the ins tant cas e. We dis agree
. In res pons e to Elas hi’s doub le jeop ardy objec tio n and alte r n a t ive requ es t for a lim itin g ins tru cti on in this cas e, the Go vernm ent init ially argued to the dis tri ct cour t that Rule 404(b) wa s inap pli cable , but it aband oned that pos itio n aft er the dis tri ct cour t requ es ted fur ther brie fing fr om the par tie s. Af t er fur ther res earc h, theGover nme nt agree d in the di st ric t cour t that the defen dant s wereentit ledto a lim itin g ins tru cti o n . The Go vernm ent ther efo re has not tak en an inco nsi st ent pos itio n on app eal.
HLF als o had off ices in New Jers ey, Illinois , and Calif orni a, and def

enda nt Od eh wa s 3 7 i n the New Jers ey off

ice. The Go vernm ent has not argued , how ever, that dec isi o n s o f H L F cam e f romanyw hereother than its he adqua rte rs inTexas

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Based on our review of the two cases and our consideration of the five relevant factors, we conclude that the indictments charged separate offenses. T h e t ime period, place of the conspiracies, and the statutory charges were th e

same or similar in the two cases, but the goals of the offenses were not the same. There was also some similarity in the co-conspirators, but the key figures in the conspiracies and the r o l e s of those who overlapped were different. The conspiracies also involved two separately designated te r r o rists, Marzook and Hamas. The five factors are “for the guidance of the court,” and the Government need not “show that each of the factors demonstrates the existence of more than

one conspiracy.” United States v. Tammaro , 636 F.2d 100, 104 (5th Cir. 1981). We conclude that, o n balance, there were two separate agreements, and therefore two conspiracies, to achieve different objectives. Elashi ’ s d o uble jeopardy argument is therefore unavailing. 3 8 K. Defendant El-Mezain’s collateal estoppel issue Defendant El-Mezain next raises a collateral e s t o p p el challenge to his conviction on the single conspiracy count for which he was re-tried in this case. He makes two related arguments. First, he c o n t e nds that because the jury acquitted him of all other charges at the first trial, collateral estoppel precluded the instant conviction. Second, he argues that the district court failed to exclude evidence in the instant trial that was related to the acquitted counts at the first trial. We consider each point separately, applying de novoreview. See United S t a t e s v. Brown , 571 F.3d 492, 497 (5th Cir. 2009) (“Whether a pros e c u t i o n violates the Double Jeopardy Clause or is preclud ed by collateral estoppel are issues of law that we review de novo .”).

Becaus e we find no doub le jeop ardy violat ion, we need not add res s Elas hi’s argum ent 3 8 that suc h a violat ion wo uld als o requ ire d i s mi ss al of the sub st antive count s agains t him in light of the dis tri ct court’s Pinke rtonin st ruc tio n an d the jury’s gene ral verdict

. 121 Case: 09-10560 Document: 00511687541 Page: 121 Date Filed: 12/07/2011No. 09-10560 1. Collateral estoppel as a bar to the instant conviction In the first trial in this case, count 1 of the indictment charged El-Mezain with conspiracy to provide material support to a Foreign Terrorist Organization (“FTO”) (i.e., Hamas), in violation of 18 U.S.C. § 2339B (“the count 1 conspiracy”

or “§ 2339B conspiracy”). The jury failed to reach a verdict on that count, but it acquitted El-Mezain on thirty-one remaining counts. Those counts charged ElMezain with substantive offenses for pr o vi ding material support to a FTO (counts 2–10); conspiracy to p r o vi d e funds, goods, and services to a Specially Designated Terrorist (“SDT”), in violation of IEEPA (count 11) (“the IEEPA conspiracy” or “count 11 conspiracy”); substantive offenses for providing funds, goods, and services to a SDT (counts 1 2

–2 1 ); and conspiracy and substantive money laundering offenses (counts 22–32). At the second trial, El-Mezain was re-tried on only the count 1 conspiracy. A re-trial following a hung jury generally does not violate t h e D o ub l e Jeopardy Clause because the jury’s failure to reach a verdict does not terminate the original jeopardy. See Yeager v. United States , 129 S. Ct. 2360, 2366 (2009); Richardson v. United States , 468 U.S. 317, 323–26 (1984). However, the Double Jeopardy Clause also incorporates the collateral estoppel doctrine, which provides tha t “w h e n an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future law s u i t

. ” Ashe v. Swenson , 397 U.S. 436, 443 (1970). Collateral estoppel may therefore affect successive criminal prosecutions based

on what the jury decided in the first prosecution. United States v. Brackett , 113 F.3d 13 9 6 , 1 3 9 8 (5th Cir. 1997). A subsequent prosecution will be completely barred “if one of the facts necessarily determin e d in the former trial is an essential element of the subsequent prosecution.” Id. For example, in Ashe the defendant was ch a r g e d with but acquitted of armed robbery of one of s i x participants in a poker game. Ashe , 397 U.S. at

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437–38. The only contested issue at trial was whether the defendant had been

one of the robbers. Id. at 438. The state re-tried the defendant at a second trial for robbing one of the other poker players, and the jury convicted him. Id. at 439–40. The Supreme Court held that the conviction was impermissible under the collateral estoppel doctrine because the first jury had necessarily found that the defendant had not been one of the robbers, a fact that the s t a t e was precluded from relitigating. Id. at 445. The collateral est o p p e l doctrine “bars relitigation only of thos e f a c ts necessarily determined in the first trial.” Brackett , 113 F.3d at 1398 (internal quotation marks and citation omitted). B e cause the first jury in Ashe could not have acquitted the defendant w i t h o u t finding that he was not involved in the rob b e ry, the second prosecution was barred. When the jury returns a general ve r di c t o f acquittal, the facts that it necessarily found are not always obvious. Therefore, to determine what the jury “necessarily decided” following an acquittal by a general verdict, the court must consider “the record of a p ri or proceeding, taking into account the pleadings, evidence, charge, and o t her relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than t hat which the defendant seeks to foreclose from considera t ion.” Yeager , 129 S. Ct. at 2367 (internal quotation marks and citat i o n omitted); see also Brackett , 113 F.3d at 1399. This is a practical inquiry made “with an eye to all the circumstances of t h e p r o c e e dings.” Yeager , 129 S. Ct. at 2367 (internal quotation marks and citation omitted). In making this determination, the court may not consider the jury’s failure to reach a verdict on some counts alleged in the indictment. See id. at 2367–68. The defendant bears the burden of demonstrating that “‘the issue whose relitigation he seeks to fore c l o s e w as actually decided in the first proceeding.’” United States v. Whitfield , 590 F.3d 325, 371 (5th Cir. 2009) (quoting Dowling v. United States , 493 U.S. 342, 350 (1990)).

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Based on the above principles, the key to the collateral estoppel analysis is whether an acqu it t a l in a prior trial necessarily determined a fact that the Government sought to prove in the second trial. As relevant to the instant case, collateral estoppel would bar El-Mezain’s conviction of the § 2339B c onspiracy if, when the jury acquitted him in the first trial of the count 11 IEEPA

con s p i r a c y a nd the other offenses, the jury necessarily decided a fact that was also a required element o f t h e § 2339B conspiracy. See Brackett , 113 F.3d at 1398–99. Put another way, we must “determine whether the jury in the [first] trial rationally could have acquitted [El-Mezain] without determi ni n g in his favor the issues crucial to the [ § 2 3 3 9B] charges.” United States v. Leach , 632 F.2d 1337, 1340 (5th Cir. 1980). At the time of the indictment in this case, IEEPA provided: “Whoever willfully violates any license, order, or regulation issued under this chapter shall, u p o n conviction, be fined not more than $50,000, or, if a natural person, may be imprisoned for not more than ten years, or both; and any officer, director,

or agent of any corporation who knowingly participates in such violation may be punished by a like fine, imprisonment, or both.” 50 U.S.C. § 1705(b) (emphasis added) (1996). For purposes of this case, a conviction of the IEEPA conspiracy t u r ns on both willful and knowing conduct. The material support statut e , however, does not contain the same willfulness element and requires only that the defendant’s cond u c t b e performed “knowingly.” See 18 U.S.C. § 2339B (“Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both.”). Focusing on the different levels of intent required under the above provisions, the district court held in this case that the two statutes required the

es t ablishment of different facts. It concluded therefore that El-Mezain’s acquittal of the IEEPA conspiracy in count 11 did not bar a re-trial of the

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§ 2339B conspiracy in count 1 because the two conspiracies are not functionally equivalent. The district court reasone d t h at t h e jury’s acquittal did not necessarily establish a fact that was an element of the conspiracy at the second trial because the jury could have found that El-Mezain did not act “willfully” for
purposes of count 11 (the acquitted count) but deadlocked on whether he acted “knowingly” for purposes of count 1 (the hung count). El-Mezain argues that the district court erred because the indictment and the Government’s theory of prosecution at the first trial did n o t di stinguish between the count 1 and the count 11 offenses, which he argues were identical in nature and relied upon the same factual predicate and overt acts. El-Mezain

reasons that “all essential facts” o f t he count 1 conspiracy upon which the Government sought to r e - t ry him were therefore decided against the Government because the acquittals on all the other counts ne c e s s a rily established that he neither knew nor intended that donations by HLF to the zakat committees were for the benefit of Hamas. We disagree. At the first trial, the jury was instructed that a guilty verdict on the count 1 conspiracy required it to find the following: First: that two or more persons agreed to provide material support or resources to a foreign terrorist organization, in his 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 knowin gly committed at least one overt act for the purpose of furth e ri ng 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 Fo r eign Terrorist Organization, and that the defendant under consideration was a member of the conspiracy on or after that date; and

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Fifth: that this court has jurisdiction over the offense. (Emphasis added). The above elements are the “essential facts” that El-Mezain sought to foreclose from re-litigation in the second trial, and he must show that the j u ry’s acquittal actually decided them in the first trial. See Whitfield , 590 F.3d at 371. A review of the record and the acquitted counts, however, shows that the jury did not necessarily resolve the above facts against the Government in reaching its verdict. The jury could have acquitted El-Mezain of the count 11 conspiracy by finding only an absence of willfulness, w hich is not one of the above essential facts for a conviction of the count 1 conspiracy. On the acquitted IEEPA conspiracy charged in count 11 , t h e j u ry was instructed that to find El-Mezain guilty it had to find the following: First: that two or more persons agreed to violate Executive Order 12947 by contributing funds, goods, and servi c e s to, or for the benefit of, a Specially Designated Terrorist, namely, Hamas;
Second: that the d e fendant 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 l east one overt act for the purpose of furthering the consp i r a c y charged in Count 11; and
Fourth: that the charged conspiracy existed on or after January 23, 1995 -- the date Hamas was designated a Spe c i a l ly Designated Terrorist -- and tha t t h e d efendant under consideration was a member of the conspiracy on or after that date. (Emphasis added). Al t hough the jury’s general verdict of acquittal “does not specify the facts ‘necessarily decided,’” Brackett , 113 F.3d at 1399, the record and the jury charge demonstrate that a rational jury could have based its verdict of acquittal on count 11 on a fact that was not an essential element of the count 1 conspiracy. See Yeage r , 1 2 9 S

. Ct. at 2367 (the court must decide “‘whether a

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rational jury could have grounded its verdict upon a n issue other than that which the defendant seeks to foreclose from consideration’”) (quoting Ashe , 397 U.S. at 444). The jury was instructed that “knowingly” means “that the act to which it refers was done voluntarily and intentionally, an d not because of mistake or accident.” The district court further instructed the jury that “willfully” 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 s a y , w i t h bad purpose either to disobey or disregard the law.” As part of their defense, the def e n d a nt s seized on this concept of willfulness by positing that they did not believe it was illegal to support the zakat committees because the committees were never d e s ignated as terrorist organizations and they were n e v er told the committees could not receive donations. On cross-examination of Levitt, the defense elicited testimony that a person wanting to know if an organization had been determined to be a SDT would consult the designation list compiled by the Secretary of the Treasury. The defense pointed out at trial that the zakat committees were not on the list. Th e defense also called as a witness a former congressman, whom HLF had hired purportedly to meet with the Treasury Department on its behalf in order to ensure that HLF’s actions complied with the law. The defendants argued that the Government ne v e r told the congressman that it considered the zakat committees to be part of Hamas. As further evidence that the defendants had not acted willfully, the defendants pointed out intercepted telephone calls where Baker had said that he needed to see the designation list so that he would know to whom donations were prohibited. The def e n dants also emphasized this theme of non-willful conduct in closing argument. El-Mezain’s counsel asked the jury to think about what HLF “did to make sure it was on the right side of the law.” He specifically argued to the jury that the defendants did not “provide aid to any
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designated organizations once the law was in effect” and that the Government “didn’t tell them” not to deal with the zakat committees. We agree with the Government, therefore, that in light of E l

- M e z ain’s defense and how the jury was instructed, the jury could have rationally acquitted El -Mezain on count 11 because it thought he participated in an agreement to support Hamas but did not do s o w illfully because he was under the belief that donations to the zakat committees were not prohibited, and thus he did not act with the specific intent to willfully disregard the law. This means that the jury’s acquittal on count 11 did not necessarilyfind the essential facts against the Government that comprise the elements of the § 2339B conspiracy in count 1, i.e., wh e t h e r El-Mezain knowingly became a member of that conspiracy. See United States v. Sarabia , __ F.3d __, No. 10-40125, 2011 WL

3 9 4977839, at *5 (5 t h C ir . O c t. 20, 2011) (holding that retrial for possession of marijuana was not barred by acquittal of conspir a cy “[g]iven the evidence presented at trial and the instructions the jury received” because the jury could have found that one element—the existence of an agreeme n t

—was not proved but still found that defendant “was the driver of the RV” containing the drugs); W h i tf ield , 590 F.3d at 372 (finding after review of jury charge and counsel’ s closing argument that issues sought to be foreclosed were not necessarily found in t h e f i r st trial); see also Leach , 632 F.2d at 1341 (holding that, although collateral estoppel barred p r o s ecution for receiving illegal campaign contributions following acquittal for “vote buying,” the “case would [have been] resolved differently” had the defendant “presented a defense that he thought the

Sim ilarly, we als o agree wi th t h e Go vernm ent that El-M ezain’ s acqui tta l on the 3 9 sub st antivecounts in the indic tm ent di d not bar the ret rialon the cons pir acy countbecaus e the jury coul d have rational l y f o u n d t h at El-M ezain did not per so nally par tic ipat e in the
su b s t antive count s. See also Brac kett , 113 F.3d at 1400 (ho ldi ng that a genera l verdict of acqui tta l “m ere ly indi cat es that the governm ent has fai led to convin ce th e j ury, beyond a reas onable doub t, of at leas t one es se ntia l e lem ent of the sub st antive off ens e; it doe s not ‘nec es sarily d ete rm ine’any fac ts atis suein the cons pir acy tri al”)

. 128 Case: 09-10560 Document: 00511687541 Page: 128 Date Filed: 12/07/2011No. 09-10560

money he paid out was going for legitimate campaign expenditures rather than for vote buying”). Because the first jury could have rationally based its verdict

on the count 11 conspiracy on an issue apart from the facts nec e ssary for a determination of guilt on count 1 , t h e r etrial was not barred by collateral estoppel. See United States v. Lee , 622 F.2d 787 , 7 9 0 ( 5th Cir. 1980) (“The doctrine of collateral estoppel precludes the subsequent prosecution only if the jury could not rationally have based it s verdict on an issue other than the one the defendant seeks to foreclose.”). Of course, it is possible that, as El-Mezain posits, the jury could have acquitted him of the count 11 conspiracy for other reasons, such as that ElMezain did not intend to provide support for Hamas or that the entities to which HLF provided assistance were not controlled by Hamas. But the fact that it is possible that the jury could hav e b a s e d its verdict on any number of facts is insufficient to apply the collateral estoppel doctrine. See Sarabia , 20 1 1 WL 4977839, at *5; Brackett , 113 F.3d a t 1398–99; Lee , 622 F.2d at 790 (“When a fact is not necessaril y d e t ermined in a former trial, the possibility that it may have been does not prevent re-examination of that issue.”) (internal quotation marks and citation omitted). E l

- M e z ain ar gu e s th at the above analysis improperly looks at the eleme nt s of the offenses a s i f t h is were a traditional double jeopardy issue instead of determining what facts were necessarily decided in the first trial. Contrary to El-Mezain’s argument, examination of the different intent levels does not inject

an improper elements analysis into the issue. I n s t e ad, it is consistent with Supreme Court p r e c edent instructing that we decide whether the jury could have based its verdict on an issue other thanthe issues the defendant seeks to foreclose. See Yeager , 129 S. Ct. at 2367; Ashe , 397 U.S. at 444; see also Sarabia , 2011 WL 4977839, at *4 (“In or d e r t o determine what the jury necessarily decided based upon the evidence presented, we must consider the elements of a
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drug-related conspiracy.”); Bolden v. Warden, W. Tenn. High Sec. Facility , 194 F.3d 579, 584 (5th Cir. 1999) (“To determine the facts necessarily decided in [a defendant’s] first trial under the first step of the collateral estoppel analysis, [a court] must examine the elements of the statutes under which [the defendant]

was charged.”). In this case, we hold that because El-Mezain has not met his burden to show that the jury necessarily decided any of the issues related to the § 2339B conspiracy, including the “knowing” requirement of that statute, the retrial was not barred by collateral estoppel. 4 0 El-Mezain further argues that even if the above analysis is correct, the district court gave a general instruction on conspiracy that incorpo r a t ed proof of willfulness into all the conspiracy counts. The district court explained in the charge that “[b]efore I ins t r u c t y o u in detail on the specific elements of the

cri m e s c h arged in the indictment, I first want to instruct you on general principles of conspiracy law.” The court then explained that one element of a conspiracy is “[t]hat th e d e f endant under consideration knew the unlawful

In sup por t of his argum ent that this is an im pr ope r “el em ents ” analys is, El-M ezain 4 0 reli es on Uni ted States v. Oh ayo n , 483 F.3d 1281, 1293 (11t h Cir. 2007)

. In that cas e, the cour t held that the coll ater al es top pel analys is foc use s on wh ethe r a fac t, rat her than a legal elem ent, wa s shared by the o f f e n s e s in suc ces sive pr os ecut ions

. Id. The cour t ther e wa s add res sin g ret rial for cons pir acy aft er acquitta l of a sub st antive off ens e and fou nd that it wa s im pr ope r me rely to com par e the legal elem ents of the tw o off ens es ther e beca use , if that we re the tes t, the cour t wo uld never reac h the ques tio n wh ethe r ther e wa s any fac tual ide ntit y. We se e no conf

lict with Oh ayo n in light of our inte rp ret atio n of Sup rem e Court pr ece dent in Yea ger and As he , as we agree that coll ater al es top pel requ ires mo re than a me re dif fer ence in the elem ents of the off ens es . But rat her tha n m e c h a n i cally com par e the off ens e elem ents here , w e exami ne the entire re cor d, including the char ges andthe jury ins tru cti ons on thos e char ges, to dec ide wh ethe r the jury in the fir st tri al coul d have fou nded its verdict on a ground othe r than the ground to be for eclo se d i n t h e se cond tri al. A def enda nt’ s sp ecif

ic inte nt is a groundt hat may or may not have been nece ss aril y d ete rm ined by a p revio us jury. See, e .g. , Uni ted States v. Rom eo , 114 F.3d 141, 143 (9t h Cir. 1997) (exam ining elem ents of the acqui tte d countf or kn ow ing p os se ss ion wi th inte nt to dis tributed rugs and find ing t hat jury c ouldno t have acqui tte d wi thou t nece ss aril y dec idi ng the “k now ing” elem ent) ; Uni ted States v. Va ughn , 80 F.3d 549, 551–53 (D .C. Cir. 1996) (ho ldin g t hat jury’s acqui tta l on tw o count s of se lling cra ck on dif

fer ent dat es b a se d on entr apm ent def ens e did not nece ss aril y det erm ine def enda nt’ s cri mi nal inte nt to mak e s ales ont woot her occ asi ons ). 130 Case: 09-10560 Document: 00511687541 Page: 130 Date Filed: 12/07/2011No. 09-10560

purpose of the agreement and joined in it willfully, that is w i t h t h e i ntent to further the unlawful purpose.” We do not agree that the di s t ri c t court’s reference to the general principles of conspiracy law incorporated a willfulness element into each conspiracy count. Although the court’s first inst r u c tion gave the general principles of conspiracy law, its second instruction gave the specific definition to be applied to the elements of each of the charged conspiracies. As charged, the § 2 3 3 9B conspiracy required only knowing conduct, while the IEEPA conspir acy re quired conduct that was both knowi n g a n d w i llful. The district court specifically instructed the jury to refer to the definitions of knowing and willful that it had previously given for those counts, and we presume that the jury followed those instructions. See Zafiro , 506 U.S. at 540. Furthermore, when the district court gives general inst ru c t i o n s but then gives conflicting specific instructions, we have found, reading the charge as a whole, that th e specific instructions adequately guide the jury. See, e.g., Jordan v. Watkins , 681 F.2d 1067, 1076 (5th Cir. 1982) (“[A]ny prej u di c e that the general definition could have caused was eviscerated by the specific instruction that immediately followed.”). Finally, El-Mezain raises numerous arguments in his reply brief for why the district court’s analysis of his collateral estoppel argument was erroneous, most notably that it improperly relied on the deadlocked count 1 to determine what the jury decided. It is true that consideration of hung counts has no place in the collateral estoppel analysis when determining what the jury necessarily decided at the first trial. See Yeager , 129 S. Ct. at 2368. But we need not rely

on the deadlocked count 1, or any inconsistency between the jury’s hanging on that count and its conviction on other counts, which Yeager forbids. See id. As already discussed, the defense, the jury charge, and the closing argument, along with the acquittal in count 11, show that the jury’s v e r di c t on the acquitted count in the first trial could have been based solely on an issue that was not an
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element of the re-tried count. This is consistent with Yeager

. Id. at 2367. 4 1 Most of El-Mezain’s arguments overlook the fact that it is his burden to establish that the issue he se e k s t o f o reclose was actually decided at the first trial. Dowling, 493 U.S. at 350; Brackett , 113 F.3d at 1398. Because we conclude that he has not met that burden, we reject El-Mezain’s collateral estoppel argument.

2. Collateral estoppel and the exclusion of evidence El-Mezain next argues that the district court er r o n eously admitted evidence that related to the counts on which he was acquitted at the first trial and also failed to give a l i miting instruction. El-Mezain reasons that the § 2339B conspiracy charged in count 1 a l l egedly began in 1997, whereas the IEEPA conspiracy charged in count 11 began in January 1995 when Hamas was designated as a SDT. According to El

- Mezain, because the jury acquitted him

o n count 11 but failed to reach a verdict on count 1, he could n o t h av e b e e n a member of any conspiracy prior to 1997 becau s e t h e acquittal absolved him of the only conspiracy that could have existed up to that time. Furthermore, the IEEPA conspiracy was alleged to have run until the t i me of the indictment in 2004. El-Mezain argues, therefor e , t h a t collateral estoppel should have
p r e c l uded evidence against him that concerned actions before 1997, as well a s any other evidence relev a n t t o t h e IEEPA counts. The challenged evidence at issue included El-Mezain’s intercepted telephone calls, videotapes in which he appeared, docume n t a t i on of his personal financial transactions, and the Elbarasse and Ashqar documents. “Even when a subsequent prosecution is not completely barred, this court has held that collateral estoppel may bar the admission or argumentation of

Sim ilarly, altho ugh El-M ezain is cor rec t that the dis tri ct cour t deni ed his coll ater al 4 1
es top pel mo tio n bas ed in par t o n t h e F ift h Circ uit pane l dec isi on that the Sup rem e Court rever se d in Yea

ger , thedis tri ct co urtalso s pec ifi call y held thatEl-Me zain fail ed toest ablis h thatthe fac tsneces sarily e st ablis hed at thefirs t tri al pre clud ed theseco nd trial, a princi ple wh ich is in line wi th Yea ger
. See129S

. Ct. at236 7.

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facts necessarily decided in the first trial.” Brackett , 113 F.3d at 1400. Because,

as discussed above in th e p r evious section, the IEEPA conspiracy charged in count 11 required th e G overn ment to prove that El-Mezain acted both knowingly and willfully, the jury could have a c qu it ted solely on the willfulness element without necessarily determining that El-Mezain was not a membe r o f a consp i r a torial agreement prior to 1997. Thus, evidence of facts related to ElMezain’s participation in an agreement to support Hamas was not precluded by collateral estoppel because the j u ry did not necessarily determine those facts against the Government in the first trial. Furth ermore, collateral estoppel does not bar the introduction of “evi de nc e of an alleged criminal act, notwithstanding the fact that the defendant previously has been acquitted of the substantive offense, to prove participation in a conspiracy to commit the substantive offense.” Id. This is because “[o]vert acts in furtherance of a conspiracy need not be criminal; therefore, acquittal for the substantive offense does not bar admission of the same evidence in a subsequent consp ir a c y trial.” Id. ; United States v. Garza , 754 F.2d 1202, 1209–10 (5th Cir. 1985). In Brackett , we held that the Government was able to introduce evidence of the defendant’s possession of marijuana, for which he had been acquitted, as part of the prosecution for conspiracy. Brackett , 113 F.3d at 1400–01. We reasoned that the evidence of possession was not barred because it was relevant to establish the d e f e n d ant’s voluntary participation in the conspiracy, but it was not required to prove the essential elements of the conspiracy offense. Id. at 1401. The same is true here with respect to the substantive counts. Even though the jury acquitted El-Mezain of being in the IEEPA conspiracy charged in count 11 that began in 1995, and of substantive counts related to both the count 1 and count 11 conspiracies, evidence of substantive acts in furtherance of those conspiracies, including acts from 1995 to 1997 (or earlier), was still relevant to

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whether he joined in the count 1 conspiracy beginning in 1997. That evidence

was not necessarily required as an essential element of the count 1 conspiracy. Se e i d

. at 1400 (“‘Mer ely because appellants were acquitted of the substantiv e

. . . ch a rges does not mean that the facts upon which the charges were based cannot later be used as non-criminal overt acts in furtherance of the conspiracy to commit the substantive offenses.’”) (citation omitted). The count 1 conspiracy also listed overt acts di f f erent from the specific transactions making up the

s ub s t antive c o unts of the indictment. Theref ore , evi de nc e c o nc ernin g s ub s t antive acts on which El-Mezain was acquitted was not barred by collateral estoppel as long as it was otherwise admissible. See Dowling, 493 U.S. at 348 (declining to extend collateral estoppel “to exclude in all circumstances

. . . r e l e v a n t and probative evidence that is otherwise admissible under the Rules of Evidence simply because it relates to alleged criminal conduct for which a defendant has been ac quitted”). El-Mezain does not argue that the challenged evidence was not relevant or probative; h e argues only that it was inadmissible because it predated or coincided with the time frame of the co n s p i r a c y f o r which he was acquitted. This argument f a i ls to establish that collateral estoppel barred the evidence. L. Mistrial and double jeopardy The defendants next claim that the district court erroneously denied their motion to dismiss the instant prosecution on double jeopardy grounds because there was no manifest necessity for a mistrial in the first case. The defendants

reason that the Government induced the mistrial through prosecutorial misconduct by impro p erly s ub mitting non-admitted exhibits to the first jury. We hold that the record shows that all defendants validly agreed to the mistrial and that there has been no showing tha t t h e G overnment engaged in intentional misconduct either to induce the defendants’ consent to the mistrial or to avoid an acquittal that it believed was likely.

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Our review of the denial of a double jeopardy claim following declaration of a mistrial is plenary. United States v. Campbell , 544 F.3d 577, 581 (5th Cir. 2008). “We review all factual findi n g s underpinning the district court’s determination for clear error.” Id

. Although the Double Jeopardy Clause prohibits a second prosecution follo w i n g a n a cquittal, a “‘retrial is not automatically barred when a criminal proceeding is terminated without finally resolving the merits of the charges against the accused.’” Id. at 580 (quoting Arizona v. Washington , 434 U.S. 497, 503 (1978)). The Double Jeo p a r dy Clause will not preclude a defendant from being retried after the district court declares a mistrial over defense objection if the mistrial was justified by a “manifest necessity.” Id. at 580–81; United States

v. Palmer , 1 2 2 F

. 3 d 215, 218 (5th Cir. 1997). If a defendant consents to a mistrial, however, the “manifest necessity” standard is inapplicable and double jeopardy ordinarily will not bar a reprosecution. See Oregon v. Kennedy , 456 U.S. 667, 672 (1982); Palmer , 122 F.3d at 218. The defendant’s consent to a mistrial may be express or implied through

a failure to object. Palmer , 122 F.3d at 218. “If a defendant does not timely and explicit ly object to a trial court’s sua sponte declaration of mistrial, that defendant will be held to have impliedly consent e d t o t h e mistrial and may be retried in a later procee di n g
. ” Id. The determination of whether a defendant objected to a mistrial is made on a case-by-c a se basis, and the critical factor is whether a defendant’s objection gave the court sufficient notice and opportunity to resolve the defendant’s concern. United States v. Fisher , 624 F.3 d 7 1 3 , 7 1 7 (5th Cir. 2010). In the instant case, the record shows that all defense counsel consented to the mistrial either expressly or impliedly. The jury in the first trial of this case clearly struggled to come to a decision. The jurors had deliberated for nineteen days and had been given an Allen cha r g e by the district court when they

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indicated that they had reached a partial verdict. The jury acquitted defendant Abdulqader on all c o u n t s ; acquitted defendant Odeh on all counts except for three consp ir a c y charges, on which it failed to reach a verdict; acquitted El-Mezain on all counts except for the count 1 conspiracy, on which the jury also hung; and failed to reach a verdict for the other defendants. The district court polled the jury on the court’s own motion, and three jurors indicated that they did not a gree with the verdict. After being sent back to continue deliberating, the jury indicated that further deliberations would not be helpful. Face d w it h a partial verdict acquitting some defendants on some counts and one defendant on all counts, and hoping to preserve the acquittals, defense counsel for Abdulqader and El-Mezain requested that the district court poll the jurors a second time to discern wh e t h er the jury’s disagreement was over the acquitted counts or only the undecided counts. The district court agreed to poll the jurors again about the individual defendants for whom partial verdicts had been reached. The district judge indicated that he intended to declare a mistrial

as to the defendants for whom no verdict had been reached, and counsel for Defendants Baker and Elashi expressly agreed to the district court’s procedure. On re-polling of the jury, one juror again indicated that he did not agree with the verdict of acquittal as to Abdulqader, and two juro r s stated that they did not agree with the acquittal of Odeh. All jurors agreed with the verdict of acquittal of El-Mezain except for count 1. The district court declared a mistrial on all counts for the defendants for whom the jury was unable to return a valid verdict, i.e., HLF, Baker, Elashi, Ab d u l q ader, and Odeh. As to El-Mezain, the court declared a mistrial as to count 1 but accepted the acquittal as to all other counts. The court stated that the Government had the option of bringing t h e c a s e a gain on the mistried counts. No one lodged any objection.

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We thi nk i t clear from the above circumstances that all defendants consented to the district court’s action. The defendants argue that counsel for Abdulqader did not consent to a mistrial because she “suggested an alternative course” after the first jury poll. But the alternative course was the request for

a second poll, which the district court grante d

. T h e court declared a mistrial when the jury indicated its continued disagreement with th e ver dict , an d counsel for Abdulqader said nothing more. Because there was no objection, and several defense counsel had already stated their agreement to the mistrial, the consent of all counsel was either expre s s or implied by their silence. See Palmer , 122 F.3d at 218–19; see also Uni t e d S t a tes v. Nichols , 977 F.2d 972, 974 (5th Cir. 1992) (consent to a mistrial may be implied from the totality of c i r c umstances surrounding the declaration of the mistrial). The district court so found, and we see no clear error in that finding. The defendants contend, nevertheless, that even if they consented to the mistrial, the consent was invalid because it was i n duced by Government misconduct, which they contend was the only reason the mistrial occurred. In 4 2 order to resolve this issue, some additional facts are necessary. When the case

was submitted to the jury at the first trial, the Government, unbeknownst to the defendants, i n c luded demonstrative and non-admitted exhibits along with the evidence that was sent to the jury room. This unintended submission included nineteen exhibits comprised of approximately 100 pages and three videotapes. Du ri n g the course of deliberations, the jury sent out a note asking about the demonstrative exhibits. Unaware tha t t h e jury had been inadvertently given

We note that the def

enda nts did not pr ope rly rais e thei r indu cem ent argum ent in the 4 2 dis tri ct cour t, wh ich deni ed the def enda nts ’ requ es t to fil e a rep ly brie f in wh ich the argum ent wa s raised for the firs t tim e. We wo uld ordinar ily revie w an iss ue not pr ope rly rais ed in the dis tri ct cour t for plai n err or only. See Uni ted S ta te s v . Co o k s , 589 F.3d 173, 184 (5t h Cir. 2009)

. Becaus e the dis tri ct cour t rule d on the me rit s of the iss ue in the alte rnat ive, how ever, and beca use we conc lude that the def enda nts ’ argum ents fai l even unde r the usua l clea rly err oneo us st andar d of revie w, w e d isc uss t he iss ue in full

. 137 Case: 09-10560 Document: 00511687541 Page: 137 Date Filed: 12/07/2011No. 09-10560

demonstrative exhibits, the district court ins t ructed that all the exhibits that

were in evidence were in the jury room. The defense learned of the error only 4 3 prior to the second trial while interviewing jurors from the first trial. Upon discovering this error, the defense moved to dismiss the superseding i ndictment on double jeopardy grounds. They submitted an affidavit from the first jury’s foreperson indicating that there had been disagr e e ment among the jurors about the demonstrative exhibits and whether the exhibits could be considered. The d efendants argued that had the Government not given those exhibits to the jury, the jury likely would have acquitted them. They also argued that the Government acted intentionally to avoid an acquittal, and th a t th e prosecutors had misrepresented to the court and counsel that it had n o t s e nt improper evidence to the jury. The district court denied the moti o n , a n d the defendants renew their arguments on appeal. A retrial caused by prosecutorial misconduct may violate double jeopardy only if “the governmental conduct in qu e s t i o n [was] intended to ‘goad’ the defendant into moving for a mistrial

. . . . ” K e n n e d y , 456 U.S. at 676. Gross negligence by the prosecutor, o r e v en intentional conduct that seriously prejudices the defense, is insufficient to apply the double jeopardy bar. United States v. Wharton , 320 F.3d 526, 531–32 (5th Cir. 2003); United States v. Sing le t e r r

y , 683 F.2d 122, 123 & n.1 (5th Cir. 1982). Instead, there must be “‘intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.’” Wharton , 320 F.3d at 531–32 (emphasis re m o v ed) (quoting Kennedy , 456 U.S. at 675–76); see also Martinez v. Caldwell , 644 F.3d 238, 243 (5th Cir. 2011) (“A prosecutor

. . . must specifically act in ‘bad faith’ or

The jur y’ s n o t e s t a t ed, in rele vant par t, “a jury me mbe r wa nts to kn ow if the 4 3 dem ons tra tive exhibit s are in the jury r oom . H e doe s not belie ve that the pow er poi nts and so me othe r exhibit s are dem ons tra tive and not actual evide nce. ” With the asse nt of counse l, the dis tri ct court ins tru cte d the jury: “The dem ons tra tive exhibit s are not in the jury roo m. All of the exhibit s in evide nce are in the jury r oom .” 138 Case: 09-10560 Document: 00511687541 Page: 138 Date Filed: 12/07/2011No. 09-10560

must intend to goad the defendant ‘into requesting a mistrial or to prejudice the defendant’s prospects for an acquittal.’”) (citation omitted). Under this narrow standard, the court must examine the “objective facts and circu m stances” to determine the prosecutor’s intent. Kennedy , 456 U.S. at 675. The defendants conten d that the Government’s intent to induce the mistrial is evident from th e prosecution’s silence in the face of the jury’s note asking about demonstrative exhibits. They posit that the Government was put

on notice that there was a problem with the evidence i n t h e j u ry room but assured defense counsel that it had not sent improper exhibits to the jury room. They contend that had the Government informed the court and counsel that it had improperly provided non-admitted exhibits to the jury, the court could have removed those exhibits and given a curative instruction. We are not persuaded. The defendants do not p o i n t to any evidence in the record showing that the Government affirma t iv e l y knew at the time of the juror’s note that improper exhibits had been submitted. As the district court held, it is just as likely that the Government believed it had not submitted anything improper to the jury. Nor do we think that the prosecutor’s silence in the face of the jury’s note proves the Government’s bad intent. As the distri c t c o u rt observed, the same note failed to cause the court or any of the eight defense counsel to register a concern on the record. We may not disturb the district court’s factual finding that the prosecution di d n ot deliberately submit the non-admitted exhibits to the jury unless that finding was clearly erroneous. See Singleterry , 683 F.2d at 124–25. The exh ib i t s that were properly admitted in this case were extensive, comprising thousands of pages of material in a complicated trial lasting several weeks. It is entirely plausible that the Government could have mistakenly or negligently, rather than intentionally, included 100 pages of non-admitted and demonstrative exhibits in the voluminous matter and then failed to discover the

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fact. See id. at 123 n.1 (holding that even “‘gross negligence ’ i s c l e a rly not enough to bar retrial”); United States v. Barcelona , 814 F.2d 165, 168 (5th Cir. 1 987) (holding that district court did not clearly err by finding prosecutor’s failure to disclose information about evidence, resulting in mistrial, was due to inadvertence). The district court’s finding was not clearly erroneous. The defendants contend that other circumstances, com b i n ed with the juror’s note, further demonstrated the bad f a i th of the prosecution. An individual juror sent a n o t e a s king to be removed from the jury. When questioned by the district court, he expressed frustration with the deliberations and also made vague references to the evidence. The defendants argue that the 4 4 Government must have known from the juror’s comm e nts that some jury

Wh en inte rview ed by t he dis tri ct cour t, t he jurors tat ed, inp art : 4 4

I kn o w t h e c a s e is bas ed on evide nce and tes tim ony. So in the del iber ating

-- And wh en so me body give they opi nion, fac ts , it’ s just lik e evide nce -- ok ay. The things we have in the jury roo m i s e viden ce. And wh en you bring up the evide nce, they talk it dow n. They got thei r ow n opi nion. It’s lik e HAMAS. This is not HAMAS. Show wh ere [s ic] me wh ere this is st ated it’ s HAMAS, and I’m just going on rec olle cti ng of the tri al. That’ s all I’m going on, and if I need to go to so me evide nce, I do it. But it’ s lik e they alre ady got their o p i n i o n . They alre ady got thei r opi nion m a d e u p , and I don’ t fee l lik e I coul d give the def enda nt just ice on that

. Hec onti nued : And you k noww hen the court rep ort er com e i n t hereand that ’s wh en I as ke d her again, is this all of this evide nce. Ye ah. Yo u can’ t do t h is. This is not evide n c e . Everythi ng in the boxes , the fir st day that she cam e, is all of this evide nce. We had a p robl emove r justt hat.
* * * *
But then it st art ed gett ing p ers onal. When you go in ther e and try to mak e a poi nt and they sit up ther e and say no, wh ere you going to sho w that up. They don’ t even have a clue wh ere HAMAS st art ed fr om , beca use they d o n ’ t e v en wa nt to hear it. They wa nt to hear noth ing ab out ter ror ism

. They don’ t wa nt to hear that

. But wh en you got thr ee or four that alre ady has thei r mi nd mad e up, it ’s no t se rved

.

140 Case: 09-10560 Document: 00511687541 Page: 140 Date Filed: 12/07/2011No. 09-10560

members believed they had demonstrative exhibits, a n d a l s o t hat there was a bloc of jurors who favored a cquittal. They contend that the Government therefore knew that an acquittal was likely. We disagree. The defendants have to show that the Government acted improperly with the purpose and intent of cau s i n g the defense to agree to a mistrial. See Kennedy , 456 U.S. at 676; see also United States v. Catton , 130 F

. 3 d 805, 807 (7th Cir. 1997) (holding that “a defendant who wants

. . . to block a retrial on the basis of prosecutorial error must show that the prosecutor committed the error because he thought that otherwise the jury would acquit and he would therefore be barred from retrying the defendant”). At the time the Government submitted the case to the jury along with the improper evidence, it could not have known that there would be an acquittal, and the defendants present no such argument. Instead, they rely on the Government’s silence after deliberations began and a juror asked to be dismissed. But that argument is premised on the unsupported belief that the Government knew the improper exhibits had been sent to the jury

room. Even if we assume that the jury’s note s and comments should have prompted the Government to investigate the matter further, its failure to do so

was at most negligent. See Singleterry , 683 F.2d at 123 & n.1

. There is no evidence that the Government knew that the jury had improper exhibits in its possession, and speculation about the prosecutor’s knowledge and intent will not support a double jeopardy argu m e nt

. See Nichols , 977 F.2d at 975 (“Because there is no evidence that t h e p r o secutor intended to terminate the first trial, ther e i s n o double jeopardy bar to Nichols’ retrial.”); see also United States v. Doyle , 121 F.3d 1078, 1087 (7th Cir. 1997) (holding that defendant’s belief about the prosecution’s intent was, “at best, mere conjecture and speculation” because “[t]here is sim p l y n o r ecord evidence that unearths the inner-thoughts of the prosecutors”).

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Moreover, the dismissed ju r o r ’s comments, read as a whole, do not unequivocally show that the G o v e r n m ent must have known an acquittal was likely and that the only way to avoid tha t r e s u l t was to remain silent about submitting the demonstrative exhibits to the jury. During its questioning of the juror, the district court expressed concern about substituting an alternate juror, thereby requiring the jury to begin deliber a t i o n s anew. The dismissed juror indicated his belief that the deliberations had not progressed very far. He also indicated that opinions, including his own, were subject to change. When read

as a whole, the juror’s c o m m e n t s d o not show that the prosecution necessarily must have apprehended an acquittal. The district court’s conclu s i o n t h at the comments showed, at most, a hung jury and conflict among the jurors was not clearly erroneous. The defendants’ double jeopardy argument is based on speculation rather than objective facts showing that the Government deliberately acted to provoke

a mistrial with the goal of avoiding an acquittal. We therefore affirm the district court’s denial of the motion to dismiss. M. Challenge to FISA applications and intercepts As noted above, the Government conducted widespread surveillance of the defendants that was authorized by court orders issued pursuant to FISA, 5 0 U.S.C. § 1801 et seq. At trial, the prosecution relied on reco r d e d e vi d e n ce captured during t h e s u rveillance. The Government’s FISA applications, affidavit s r e l ated to the warrant applications, the court orders regarding the applications, and much of the information obtained from the surveillance have been classified. The defendants raise two challenges relating to FISA, arguing 4 5 that the district court erred by (1) refusing to compel the production of the FISA

Becaus e of the clas sif

ied and se nsi tive natur e of the mat eria ls at iss ue, this cour t has 4 5 cond uct ed an in came ra revie w of the relevant mat eria ls, but the opi nion does not revea l the clas sif iedc onte nts of

thos e d ocum ents

. 142 Case: 09-10560 Document: 00511687541 Page: 142 Date Filed: 12/07/2011No. 09-10560

warrant applications and court ord e r s , and (2) refusing to suppress the FISA intercepts. We find no merit in either argument.

1. Disclosure of FISA applications and orders FISA establishes procedures for the Government, acting through the Attorney General, to obtain a judicial warrant for electronic surveillance in the United States “to acqu i re foreign intelligence information.” 50 U.S.C. § 1802(a)(1). Foreign intelligence information includes, inter alia , information relating to “the ability of the United Sta t e s t o protect against

. . . sabotage, international terrorism, or . . . clandestine intelligence activities by

. . . a foreign
power or by an agent of a foreign power[.]” § 1801(e). With limited exceptions 4 6 not relevant here, the Government may not conduct e l e ctronic surveillance without a court-authorized warrant. Application for a FISA warrant is made ex parte to the Foreign Intelligence Surveillance Court (“FISC”), which is currently comprised of eleven district court judges designated by the Chief Justice of the

Thef ull textof

t he st atut e d efi nes “for eign inte lligenc e i nfo rm atio n” to me an: 4 6 (1) info rm atio n that rela tes to, and if conc erni ng a Unit e d S t a t es per so n is nece ss ary to, t he abilit y of t he Unit ed States t o p rot ectagai nst– (A) act ual or pot enti al att ack or othe r grave hos tile act s of a for eign pow er or an agent of a f

ore ign p ow er; (B) sab otage , inte rnat ional ter ror ism , o r t h e inte rnat ional pr olif erat ion of we apo ns of mas s des tru cti on by a for eign pow er or an agent of a for eign pow er; or (C) cland es tine inte lligenc e act ivitie s by an inte lligenc e se rvice or netw ork of a for eign pow er or by an agent of a f ore ign p ow er; or (2) info rm atio n wi th res pec t to a for eign pow er or for eign ter rit ory that rela tes to, andif

c once rning a U nite d Sta tes p ers on is nece ss ary to– (A) t he natio nal def

ens e o r the se curity of the Unit ed Sta tes ; or (B) t he cond uctof

t he for eign aff

airs of t he Unit ed Sta tes

. 50 U .S .C. § 1801( e). 143 Case: 09-10560 Document: 00511687541 Page: 143 Date Filed: 12/07/2011No. 09-10560

United States. § 1803(a)(1). The FISC’s ru l i n g s a r e subject to review by the 4 7 Foreign Intelligence Surveillance Court of Review (“FISCR”), which consists of three judges also designated by the Chief Justice. § 1803(b). To obtain FISC approval for su rveillance, the Government must show, inter alia , probable cause to believe that “the target of the electronic surveillance is a foreign power or an agent of a foreign power” and that the p l ace of surveillance “is being used, or is about to be used, by a foreign power or an agent of a foreign power.” § 1 8 05(a)(2)(A), (B). This probable cause standard is different from the standar d i n t h e typical criminal case because, rather than focusing on probable cause to believe that a person has committed a crime, the FISA standard focuses on the status of the target as a foreign power or an agent of a foreign power. A “foreign power” includes “a group engaged in international terrorism or activities in preparation the r e f o r .” § 1801(a)(4); see also United 4 8

Prior to ame ndm ents t o FISA in 2001, t he FISC w as com prise d of se ven jud ges. 4 7
Thes tat ute full y d efi nes a “f ore ign p ow er” t o b e: 4 8 (1) a for eign governm ent orany comp onentthere of, whet her or not recognize d by t he Unit ed Sta tes ; (2) a fac tio n of a for eign natio n or natio ns, not sub st antia lly com pos ed of Unit ed Sta tes p ers ons ; (3) an enti ty that is ope nly ac k n o w l e d g ed by a for eign governm ent or governm ents to be dir ect ed and cont roll ed by s u c h for eign governm ent or governm ents ; (4) a group engaged in inte rnat ional ter ror ism or act ivitie s in p r e p a rat ion ther efo r; (5) a for eign- bas ed pol itic al organi zatio n, not sub st antia lly com pos ed of Unit ed Sta tes p ers ons ; (6) an enti ty that is dir ect e d a n d cont roll ed by a for eign governm ent or governm ents ; or (7) an enti ty not sub st antia lly com pos ed of Unit ed S t a t e s per so ns that is 144 Case: 09-10560 Document: 00511687541 Page: 144 Date Filed: 12/07/2011No. 09-10560

States v. Marzook , 435 F. Supp. 2d 778, 780 (N.D. Ill. 2006) (noting that Hamas is a foreign power). An “agent of a foreign power” includes any person who “knowingly aids or ab e t s any person” engaged in specified activity, including intelligence gathering, sabotage, or international terrorism. § 1801(b)(2)(E). 4 9 When the Government intends to use informatio n ob t ain e d f ro m electronic surveillance authorized under FISA, it must give notice to the person against whom it intends to use that information and to the court where the information will be used. § 1806(c). The aggrieved person may see k di s c o v e ry of the 5 0 “applications or or der s or oth er m at eri al s rel atin g to electronic surveillance,” and

engagedint he inte rnat ional pr olif erat ion of we apo ns of mas s des tru cti on. 50 U .S .C. § 1801( a).
An “agentof

a for eign pow er” is d efi ned to inclu de any p ers on wh o: 4 9 (A) kn ow ingly engages in cland es tine inte lligenc e gather ing activitie s for or on behalf of a for eign pow er, wh ich act ivitie s involve or may involve a violat ion of the cri mi nal st atut es of t he Unit ed Sta tes ; (B) pur sua nt to the dir ect ion of an inte lligenc e s ervic e o r netw orkof a for eign pow er, kn ow ingly engages in any othe r cland es tine inte lligenc e act ivitie s for or on behalf of suc h for eign pow er, wh ich act ivitie s involve or are about to involve a vio lati on of the cri mi nal st atut es of t he Unit ed Sta tes ; (C) kn ow ingly engages in sab otage or inte rnat ional ter ror ism , or act ivitie s that are in pr eparation ther efo r, f or or on behalf

of a for eign pow er; (D ) kn ow ingly ente rs the Unit ed States unde r a fal se or fr audul ent ide ntity for or on beha l f of a for eign pow er or, wh ile in the Unit ed Sta tes , kn ow ingly ass ume s a f

als e o r fr audul ent ide ntit y f or or on behalf

of a for eign pow er; or (E) kn ow ingly aids or abet s any per so n in the cond uct of act ivitie s des cribed in sub par agrap h (A) , (B) , or (C) or kn ow ingly cons pir es wi th any per so n to engage in act ivitie s des cribedins ubpar agrap h (A), ( B), or( C).
50 U .S .C. § 1801(b)( 2).

“‘Aggri eved per so n’ me ans a per so n wh o is the tar get of an elec tro nic surveillan ce or 5 0 any othe r per so n wh os e com mun icat ions or act ivitie s we re subject to elec tro nic surveillan ce. ” 50 U .S .C. § 1801(k)

. 145 Case: 09-10560 Document: 00511687541 Page: 145 Date Filed: 12/07/2011No. 09-10560

he may also seek to suppress evide n ce obtained from the surveillance if “the i n f o r m a tion was unlawfully acquired” or if “the surveillance was not made i n conformity with an o r d e r of authorization or approval.” § 1806(e), (f). If, however, “the Attorney General files an affidavit under oath that disclosure or

an adversary hearing would harm the national sec u ri ty of the United States,” the district court must “review i n c a m era and ex parte the application, order, and such other materials relating to the surveillance a s may be necessary to determine whether the surveillance of the aggrieved p e r s o n was lawfully authorized and conducted.” § 1806(f). In the instant case, the Government gave the defendants n o t i c e that it intended to use at trial information obtained from surveillance approved under FISA. During the course of discovery in the first trial, the Governme n t inadvertently disclose d some of the FISA materials to the defendants. The district court, upon motion by the Government, ordered the defendants to return the non-discoverable material to the prosecution. The defendants subsequently moved to compel production of the FISA applications and to suppress the e vi dence obtained from the surveillance, and the Attorney General filed the requisite national security notice to maintain the confident i a l i t y of the FISA materials. The district court refused to order disclosure and denied the suppression motion after conducting an in camera and

ex parte review of the documen t s . Prior to the second trial, the defendants renewed their request for disclosure, which was denied. On appeal, the defendants argue that the district court erred by denying their motion for production of the FISA materials. They contend that, pursuant to the FISA statute and due process, disclosure and the participation of defense counsel were necessary i n o r d er for the district court to make an accurate determination of the lawfulness of the surveillance. The defendants specifically contest whether the FISA warr a n t applications established probable cause to

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believe that the targets of the investigation were “agents of a f oreign power.” They assert their belief that the app l i c a t ions did not meet the probable cause standard because of material misstatements and omissions in the applications. We review for an abuse of discretion the district court’s order denying disclosure of applications and ot h e r m a t e rials related to FISA surveillance. See United States v. Damrah , 412 F.3d 618, 624 (6th Cir. 200 5). In the course of an in camera review of FISA materials, the district court has discretion to disclos e the information to the aggrieved person but “only where such disclosure is nece s s a r y to make an accurate determination of the legality of the surveillance.” 50 U.S.C. § 1806(f) (emphasis added). Wh e n the di s t ri ct court “determines that the surveillance was lawfully authorized an d conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.” § 1806(g). In a very well-reasoned opinion, the district court here closely considered the defendants’ arguments for disclosure and determined that it was capable of

r e vi e w i ng the lawfulness of the FISA surveillance without assistance from defense counsel. The court concluded after an extensive in camera review that the FISA surveillance was lawful. The court reasoned as follows:

After thoroughly reviewing each of the FISA applications at i s s u e in thi s p ro s e cutio n , accompanying affidavits, the FISC’s orders and additional mate ri a l s submitted by the government, the court finds that it does not need the assistance of defense counsel to make an accurate determination of the legality of the surveillance. This conclusion is not unusual among courts t h a t h ave faced this situation; indeed, the parties agree that no court has ever o r d e red that FISA materials be disclosed or that an adversarial hearing be conducted to assist the court in deter m i ning the legality of FISA surveillance. . . . Although the defendants argue fervently that this is a unique c a s e because the government made widespread intentional a n d
re ckl e s s mi s re p re s e nt atio n s to obtain FISA warrants from the FI S C ,

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. . . evidence from the government has s h o wn that the alleged irregularities have been greatly exaggerated by the defendants[.]

. . . The errors in the FISA applications identified b y the defendants and documented by the government are not pervasive; nor did the errors materially alter the evidence supporting the FISA warr ants involving the defendants. . . .
The court reviewed each of the iden tified errors and found them to be typographical or clerica l in nature. Although the government should have exercised greater c a r e in drafting and editing its a p p l i cations for FISA warrants before presenting those applications to the FISC, the government acknowledged the errors it made and provided corrected information to the FISC more than six years ago when it discovered the errors. . . . In addition, the FBI conducted an internal investigation of the special a gent whom the defendants allege “was guilty of numerous and repeated falsehoods a n d inaccuracies in the FISA applications in this case,”

. . . a n d f o un d that allegations of “investigative dereliction” were m eritl e s s [

. ] . . . The court reaches the same conclusion.
Because the errors identified by the defendants did not materially alter the evidence outlined in the FISA applications and because the errors were not pervasive enough to confuse the court as to t h e quantity or quality of the evidence described in the applications, the court does not believe t h a t disclosing the applications and related materials to defense counsel would assist the court in making an accurate determination of the legality of the surveillance. Consequently, it would be inappropriate for the court to provide defense counsel with access to the documents under the terms of 50 U.S.C. § 1806(f).
We have undertaken our own independent in camera review of the FISA materials and conclude that the district court was correct. We agree fully with the district court’ s r e a s oning and adopt it as our own. “[D]isclosure of FISA materials is the exception and ex parte, in camera determi n a t i o n is the rule.” United States v. Abu-Jihaad , 630 F.3d 102, 129 (2d Cir. 2010) (internal quotation marks and citation omitted). We see no abuse of discre t ion by the

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district court’s refusal to order disclosure of the FISA appli c a t i o n s a nd other material pursuant to § 1806(f). Relying on the balancing test of Mathews v. Eldridge , 424 U.S. 319, 335 (1976), the defendants also argue that due process required disclosure because their interest in obtaining the FISA materials outweighed the Government’s interest in maintaining its secrecy. Assuming without deciding that the Mathews balancing test is applicable here, but see Damrah , 412 F.3d at 624 (stating that defendant’s “reliance on Mathews is misplaced

. . . because FISA’s requirement that the district court conduct an ex parte, in camera review of FISA materials does not deprive a defendant of due process”), we conclude that there was no due process violation. The Mathews bal a n c i n g test requires the court to consider (1) the defendants’ private interest in disclosure of the FISA materials; (2) the risk that defendants will be erroneously deprived of their right to the materials, and the value of additional or substi t ute procedural safeguards; and (3) the Government’s interest in preventing disclosure. See Mathews , 424 U.S. at 335. The defendants argue that they have a substantial i nt e r e st in an accurate determination of their claim that the Government’s surveillance violated their

ri gh t s , and that the district court’s in camera review of the materials witho u t counsel’s input carried a high risk of an erroneous decision. We agree with the district court’s assessment of this issue, however, that the in camera and ex parte review by the dist rict court adequately en sured that the defendants’ statutory and constitutional rights were not violated. See United States v. Belfield , 692 F.2d 141, 149 n. 3 8 (D

. C

. Cir. 1982) (disclosure of FISA materials “will not be require d w hen the task is such that in camera procedures will adequately safeguard the ‘aggrieved party’s’ constitutional rights”). Numerous courts have held that FISA’s in camera and ex parte procedures are adequate and withstand constitutional scrutiny. See, e.g., Damrah , 412 F.3d at 624–25; United States v.
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Isa , 923 F.2d 1300, 1306–07 (8th Cir. 1991); United States v. Ott , 827 F.2d 473, 476–77 (9th Cir. 1987); Belfield , 692 F.2d at 148–49. Furthermore, w e a l s o agree with the district court that, as a matter of national security, the Government has a substantial interest in maintaining the secrecy of the materials. This interest extends not only to the contents of the materi als but also to the appearance of confidentiality in the operation of the intelligenc e s e rvices. See, e.g., C.I.A. v. Sims , 471 U.S. 159, 175 (1985) (“If potentially valuable intelligence sourc es come to think that the Agency will be

u nable to maintain the confidentiality of its relationship to them, ma ny c o u l d well refuse to supply informat i o n t o t h e Agency in the first place.”). We are unpersuaded by the defendants’ argument that the Gove r n m e n t’s interest is diminished because defense counsel possess security c l earance to review clas s i f ied material. “Congress has a legitimate interest in authorizing the Attorn ey G e n er al to invok e p rocedures designed to ensure that sensitive security information is not unnecessarily disseminated to anyone not involv ed in the surveillance operation in question, whether or not she happens for unrelated

reasons to enjoy security clearance.” Ott , 827 F.2d at 477. Furthermore, as noted by the district court, defense counsel do not possess the security clearance to review all of the FISA materials in this case, some of which is classified above counsel’s clearance level. Our conclusion that the defendants’ du e process rights have not been

vi o l a t ed is also buttressed by our own in camera consideration of the F I SA materials. Based on that review, we are c o nvinced that the district court properly weighed the respective interests of the defendants and the Government along with the sensitivity of the materials. We co n clude, therefore, that due
process did not require disclosure of the FISA materials, and that the district court properly denied the defendants’ motion to compel disclosure.

150 Case: 09-10560 Document: 00511687541 Page: 150 Date Filed: 12/07/2011No. 09-10560 2. Suppression of FISA intercepts The defendants further argue t h a t the district court erroneously denied their motio n t o suppress the evidence obtained from the FISA surveillance. First, the def

e n d ant s ar gu e th at the FISA surveillance was improper because the “primary purpose” of the intercepts was a criminal investigation rather than the gathering of f

o r e i gn intelligence. Second, they contend that the Government failed to establish pro b able cause that the target of the FISA warrant was “a foreign power or an agent of a foreign power.” Finally, the defendants contend that the district court should have granted them an evidentiary hearing under Franks v. Delaware , 438 U.S. 154 ( 1 978), at which they could challenge the veracity of the inf

o r m a t i on in the FISA warrant applications. We are unpersuaded by these arguments. We review de novo the district court’s ruling on the propriety of orders from the FISA court. United States v. Dumeisi , 424 F.3d 566, 578 (7th Cir. 2005). “In considering challenges to FISA Court orders, however, ‘the representations and certifications submitted in support of an application for FISA surveillance should be presumed valid’ by a reviewing court absent a

s h owing sufficient to trigger a Franks hearing.” Abu-Jihaad , 630 F.3d at 130 (citation omitted). The defendants’ argument that the surveillance was unlawful because the “primary purpose” was a criminal investigation rather than foreign intelligence is misplaced because the test that they advocate is inapplicable. The FISA surveillance in this case began approximately in 19 9 4 and was therefore governed by the pre-amended version of FISA. “As originally enacted [in 1978], FISA required a high-ranking member of the executive branch to certify that ‘the purpose’ for which a warrant was being sought was to obtain ‘foreign intelligence information.’” Id. at 119 (quoting 50 U.S.C. § 1804(a)(7)(B) (Supp. V 1981)). Some courts interpreted this provision of FISA as requiring “that foreign

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intelligence information be ‘the primary objective of the surveillance.’” Id. (quoting United States v. Duggan , 743 F.2d 59, 77 (2d Cir. 1984)); see also United States v. Johnson , 952 F.2d 565, 572 (1st Cir. 1991) (“Although evidence obtained under FISA subsequently may be used in criminal prosecutions,

. . . the investigation of criminal activity cannot be t h e p rimary purpose of the surveillance. The act is not to be used as an end-run around the F o u r t h Amendment’s prohibition of warrantless searches.”) (citations omitted). Those courts reasoned that the “primary purpose” certification distinguished foreign intelligence gathering from o r dinary criminal cases, where unlike FISA, the Fourth Amendment requires probable cause to believe a crime has been committed before the Government may invade individual privacy interests. See United States v. Truong Dinh Hung , 629 F.2d 908, 915 (4th Cir. 198 0). In 2001, Congress amended FISA when it passed the PATRIOT Act. See Pub. L. No. 107-56, 115 Stat. 271 (2001). Among other things, the amendments authorized FISA surveillance when the Government certifies that foreign intelligence gathering is “a significant purpose” rather than “the purpose.” Id. § 218, 115 Stat. at 291. B y t hese amendments “Congress indicated that it did not, in fact, require foreign intelligence gathering to be the primary purpose of the requested surveillance to obtain a FISA warrant.” Abu-Jihaad , 630 F.3d at 119. The precise question at issue here, whether the pre-amended version of FISA required that the primary purpose of surveillance be gathering foreign intelligence rather than gathering information for a criminal investigation, has been thoroughly addressed by the Foreign Intelligence Surveillance Court of Review. See In re Sealed Case , 310 F.3d 717 (FISCR 2002). After an exhaustive analysis of the statutory text and legislative history, as well as circuit court opinions that had construed FISA to require a primary purpose test, the FISCR held in In re Sealed Case that there had never been a primary purpose
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requirement. Id. at 723–27. The c o u r t reasoned that, because the statute’s definition of “foreign intelligence information” necessarily included evidence of crimes , such as espionage, sabotage, and terrorism, it was “virtually impossible to read t he 1978 FISA to exclude from its purpose the prosecution of foreign intelligence crimes, most importantly because, as we have noted, the definition of an agent of a foreign power—if he or she is a U.S. person—is grounded on criminal conduct.” Id. at 723. As originally enacted, the court held, FISA had not “even contemplated that the FISA court would inquire into the government’s
purpose in seeking foreign intellig e n ce information.” Id. The court therefore concluded that “the FISA as passed by Congress in 1978 clearly did not preclude

or limit the government’s use or proposed use of foreign intelligence information, which included evidence of certain kinds o f c riminal activity, in a criminal prosecution.” Id. at 727. In light of the above, the defendants’ argument that the FISA surveillance

was subject to suppression because its pri m a ry p u rpose was a criminal i nvestigation, is unavailing. Like the district court, we need not, and do n o t , decide that the primary purpo s e o f t h e surveillance here was a criminal investigation. Instea d , w e hold that the defendants’ argument for application of a primary purpose test is incorrect. Similarly, we reject the defendants’ argument that th e F I SA warrant

a pplications did not establish the requisite probable cause in this ca s e . U p o n careful in camera review of the challenged FISA orders and applications, and the classified materials in support of the applic a t i o n s, we conclude that the Government demonstrated the requirements for probable cause, including the belief that the targets of the surveillance were agents of a foreign power and that the place of surveillance was being used, or was about to be used, by an agent of a foreign power. See50 U.S.C. § 1804(a)(3).

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For the same reasons, the defendants have also failed to show a basis for

a Franks hearing. A defendant, upon a proper preliminary showing, may obtain

an evidentiary hearing to challenge the truthfulness of statements made in an affidavit s u p p orting a warrant. Franks , 438 U.S. at 155–56. A defendant is

e n t i t led to a Franks hearing if he shows “that (1) allegations in a supporti n g affidavit were deliberate falsehoods o r made with a reckless disregard for the truth, and (2) the remaining portion of the affidavit is not sufficient to support

a finding of probable cause.” United States v. Brown , 298 F.3d 392, 395 (5th Cir. 2002). We find no basis to co n c l ude that the statements relied upon by the defendants were made with reckless disregard for the truth. Nor do we find that the statements were necessary to the finding of probable cause. We agree with the district court’s conclusion that probable cause was satisfied even absent the

erroneous statements. We therefore a f f i r m the district court’s denial of the suppression motion. N. Sentencing Next, we consider two sentencing issues. The defendants contend that (1) the district court erroneously calcu l a t e d their offense levels under the Senten c i ng Guidelines by applying an enhancement under U.S.S.G. § 3A1.4 because their crimes involved terrorism, and (2) the district court erroneo u s l y calculated the value of funds involved in the money laundering offenses. We review the district court’s int e r p r etation and application of the Sentencing Guidelines de n o v o and its factual findings for clear error. United States v. Lige , 635 F.3d 668, 670 (5th Cir. 2011). A factual finding will be upheld “if it is plausible in the light of the entire record.” United States v. R u b i o , 629 F.3d 490, 492 (5th Cir. 2010).

1. Terrorism adjustment The presentence report (“PSR”) for each of the i n divi d u al defendants in this case applied a 12-level sentencing enhancement pursuant to § 3A1.4 of the

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2002 version of the Sentencing Guidelines. Section 3A1.4 provides for an offense level enhancement and an automatic increase to criminal history category VI “[i]f the offense is a felony that involved, or was intended to promote, a federal crime of terrorism.” § 3A1.4(a). The application notes cross-reference 18 U.S.C. § 2332b(g)(5) for the definition of a “federal crime of terrorism.” Id. , cmt. (n.1). A “federal crime of terrorism” is defined as an offense that “(A) is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct;” and “(B) is a violation of [any of a list of specific statutes].” § 2332b(g)(5). On appeal , t h e d efendants do not contest that they were convicted of offenses for which the enhancement is a p p l i cable, as required by the second prong of the definition of a federal crime of terrorism. The defendants challenge only the application of the first prong of the definition, which requires that their

o ffenses were “calculated to influence or affect the conduct of govern m e n t b y intimidation or coercion.” They argue that there was no evidence that they acted with the requisite intent. The probation de p art m e nt ap p li e d th e t errorism enhancement in the PSRs because “HLF was involved in sending material support to a SDT in order to rid Palestine of the Jewis h people through violent jihad, HAMAS’ mission. Since the offense is a felony that was intended to promote a federal crime of terrorism 12 levels are applied.” The defendants objected in the distri c t c o u r t t hat the enhancement did not apply because the Government failed to prove that they acted with the intent to influence o r af f e c t the conduct of government. In overruling the obj e ction, the district court found that the evidence established that HLF’s purpose was to support Hamas as a fundraising arm, and that videotapes, wir e t a p s , and seized documents interlinked the defendants, HLF, and Ham a s , a nd demonstrated the defendants’ support of Hamas’s mission of terrorism. We conclude that the district court did not clearly err. See U n i t ed

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States v. Harris , 4 3 4 F.3d 767, 772–73 (5th Cir. 2005) (reviewing the “influencing government” prong of § 3A1.4 for clear error). As pointed out by the Government, the trial was replete with evidence to satisfy application of the terror i sm enhancement because of the defendants’ intent to support Hamas. The H a m a s charter clearly delineated the goal of meeting the Palestinian/Israeli conflict with violent j ihad and the rejection of
peace efforts a n d compromise solutions. The defendants knew that they were supporting Hamas, as there was voluminous evidence showing their close ties to the Hamas movement. The evidence of statements made by the defendants at the Philadelphia meeting and in wire intercepts throughout the course of the investigation demonstrated the defendants’ support for Hamas’s goal of disrupting the Oslo accords and the peace process, as well as their a greement

w i th H a m a s’s goals of fighting Israel. To the extent that the defendant s knowingly assisted Hamas, their actions benefitted Hamas’s terrorist goals and

were calculated to promote a terr o ri s t c ri me that influenced government. See United States v. Jayyousi , __ F.3d __, No. 08-10494, 2011 WL 4346322, at *26–27 (11th Cir. 2011) (holding that terrorism enhancement under § 3A1.4 applies when purpose of defendants’ activity is calculated to promote a terrorism crime regardless of defendants’ personal motivations); United States v. Awan , 607 F.3d 306, 316–18 (2d Cir. 2010) (holding that for § 3A1.4 enhancement the Government need not show that the defendant was personally motivated to influence government if it shows that he intended to promote a crime calculated to have such an effect). The defendants’ relia n ce on United States v. Chandia , 514 F.3d 365, 375–76 (4th Cir. 2008), in support of their argument agai n s t th e terrorism enhancement is unavailing. In that case, the Fourth Circuit reversed a § 3A1.4 enhancement for a defendant c o nvi c t ed of providing material support to a terrorist organization because the PSR provided n o e x planation for the

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adjustment, the district court made no factual findings to justify its application,

a nd the acts underlying the conviction were not violent terrorist acts. See id. In the instant case, a l t h o u gh the defendants were not convicted of underlying terrorist acts, the PSRs adequately explained the basis for the enhancement and the district court made explicit factual findings. In light of the evidence showing the ties between the defendants and Hamas and their support of Hamas through HLF, the district court’s finding that the defendants intended to influence government through their actions was plausible and not clearly erroneous.

2. Value of laundered funds The individual defendants’ PSRs calculated the total amount of the funds laundered from the money laundering offens e s t o be approximately $16.6 million. The defendants argue on appeal that this determination was incorrect because that amount “represents every penny HLF w i r ed out of the country between 1995 and 2001, rega r dl e s s of the destination and purpose.” The defendants assert that some portion of the funds was sent to places other than the West Bank and Gaza and served legitimate charitable needs. According to the defendants, the amount of funds laundered should have included, at most, funds sent only to the West Bank and Gaza and the zakat committees that were alleged in the indictment as being controlled by Hamas. We find no merit in this argument. First, in their one-paragraph discussion, the defendants cite no authority and do not explain how the allegedly erroneous calculation of the l a undered funds affected their guidelines rang e s o r sentences. The issue is therefore deemed abandoned due to inadequate briefing. See United States v. Reagan , 596 F.3d 251, 254–55 (5th Cir. 2010) (failure to offer further argument or explanation is a failure to brief and constitutes a waiver). Second, even if we consider the issue, it is clear from the PSRs that the amount of laundered funds wa s n o t used to calculate the defendants’ offense

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l e v e l s a n d did not factor into the guidelines computations. The guideline for money laundering directs the probation office to apply the base offense level for the underlying offense. See U.S.S.G. § 2S1.1(a)(1). As so directed, the PSRs in this case applied the offense level for the offense of providing material support t o a foreign terrorist organization under § 2M5.3. The PSRs m a d e n o adjustments to the offense level based on the amount of money laundered. The probation officer noted in response to the defendants’ objection in the district court that the only impact that a specific dollar amount of laundered funds could have is on the maximum guideline fine range. However, any p o t e n t i al

error is harmless because the district court did not impose a fine on any of the defendants. See, e.g. , U n i t e d S t ates v. Johnson , 467 F.3d 559, 564 (6th Cir. 5 1 2006) (holding that an error is harmless if the Government shows with certainty that an error at sentencing did not cause the defendant to receive a more severe sentence). Finally, th e PSR determined that HLF’s provision of some funds to legitimate charitable organizations helped to hide its true agenda of supporting Hamas. The district court agreed with the PSR that even if some of the money sent out of the country was for some legitimate purpose, the sole purpose of HLF

was to provide financial support for Hamas, and therefore the entire amount w a s properly included as laundered funds. The district court was entitled to rely on the PSR, see United States v. Rodriguez , 602 F.3d 346, 363 (5th Cir. 2010) (holding that the district court may rely on the PSR where it is contradicted only

The dis tri ct cour t did o r d e r that the def enda nts we re subject to a for fei tur e of 5 1 app roxim atel y $12 mi llion , but no def enda nt has brie fed the for fei tur e ord er or expla ined how it is rela ted to the calc ulati on of the laund ere d fund s or to the dis tri ct cour t’s allege d err or in app lying the se nten cing guide lines

. In any event , the for fei tur e ord er wa s bas ed on the char ge in t h e i n d i c t me nt and the cor res pond ing find ing by the jury’s sp ecia l verdict that the def enda nts we re subject to a for feitur e of that amo unt, wh ich rep res ents a p o r t i o n of the mo nies t hat the jury f oundt he def

enda nts s ent outs ide the Unit ed States f or the pur pos e o f ass ist ing a des ignate d ter ror istor ganizati on. 158 Case: 09-10560 Document: 00511687541 Page: 158 Date Filed: 12/07/2011No. 09-10560

by the defendant’s objections), and its finding was not clearly erroneous. The defendants’ challenge to their sentences is therefore rejected. O. Appeals of HLF and Nancy Hollander We next address the separate appeals of HLF and Nancy Hollander. HLF contends that its Sixth Amendment right to counsel was violated because it was convicted without representation at trial. Hollander contends that the district court, in deciding issues related to HLF’s representation, improperly sanctioned her for professional misconduct. Because the issues in each appeal derive from

a common factual background, we first set forth additional facts n e cessary for

our decision before turning to each argument. As we explain, we dismiss both appeals because we conclude that we lack appellate jurisdiction. 1. Background As noted above, the case against HLF began w i t h a n indictment of all defendants in July 2004. On September 7, 2004, Attorney Nancy Hollander, of the law firm Freedman Boyd Daniels Hollander Goldberg & Cline, P.A. (“Freedman Boyd”), wrote a letter to OFAC, inquiring whether Freedman Boyd 5 2 could represen t H LF pro bono in the criminal case. In the letter, Hollander

s t at e d , “A corporation cannot appear pro se ; it must appear only through counsel

. HLF clearly has a Sixth Amendment right to counsel; therefore, any conviction against it, including any forfeiture of the frozen funds, will likely be reversed if it is forced to trial without counsel.” (Citations omitted). Hollander sent copies

o f t h e l e tter to the district court, government counsel, and defense counsel. O FA C responded that Freedman Boyd was authorized to represent HL F p r o bo n o , b u t t h a t no blocked funds could be used to pay for the representation. Freedman Boyd agreed to represent HLF pro bono and entered an appearance

The current nam e of the la w f i r m i s Free dm an Boyd Ho lland er Go ldbe rg Ives & 5 2 Du ncan, P. A. 159 Case: 09-10560 Document: 00511687541 Page: 159 Date Filed: 12/07/2011No. 09-10560

on HLF’s behalf. Freedman Boyd also filed an entry of appearance on behalf of individual Defendant Baker in September 2004. At a July 200 6 s t a t u s conference, the district court and the parties discussed th e potential conflict of interest arising from Freedman Boyd’s joint representati o n o f HLF and Baker. Hollander stated that she would obtain conflict waivers from both parties. She also stated, “The other possibility is that

we will stop representing [HLF] and it simply won’t have a representative in this lawsuit. But I think we can resolve this.” On September 29, 2006, Freedman Boyd filed with the court Baker’s and HLF’s written waivers of any potential or actual conflict of interest. Defendant Elashi, who was the HLF B o ar d C h airman, signed the conflict waiver on behalf of HLF. The issue of Freedman Bo y d ’ s c onflict of interest was brought up again just before the start of the first trial. At a h e a ring on July 13, 2007, Teresa Duncan, another attorney at Freedman Boyd, stated that she represented both Baker and HLF. The district court b e c a m e c o ncerned about the potential conflict of interest and asked whether, pursuant to Federal Rule of Criminal Procedure 44, the defendants understood the risks to joint representation. Duncan replied that Baker and HLF had signed conflict waivers and that she was satisfied that the defendants understood the hazards involved in joint representation. On July 17, 2007, the second day of voir dire, the issue of Freedman Boyd’s conflict of interest arose yet again. The Gover n m e nt noted that the court had

n o t y e t c onducted a Rule 44 oral colloquy with the defendants regarding thei r waiver of a conflict. District Judge Fish agreed that he should examine each of the defendants pursuant to Rule 44, but he noted that he was not sure whether HLF had a “natural person representative” able to speak on HLF’s behalf. The Gov e r n ment told the court that Elashi had signed the conflict waiver, but the Government also noted that this waiver might not be valid because Elashi is also

a defendant in the case. Elashi’s counsel, John Cline, asked the court for a night

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to think about the matter, and the court agreed to discuss the issue the following morning. The next day, Cline told the court that “we don’t know e i ther of the

curren t status of [HLF], whether it exists even as an entity or Mr. Elashi’s status, if it does exist.” Therefore, Cline stated that Elashi “cannot speak for the Holy Land Foundation” regarding a waiver of conflict. The court responded, “I thought we had [HLF] as a represented d e f e ndant in this case; that is, represented by counsel. But I’m inferring from what has been s aid that there is no natural person as the representative of [HLF] who would be the client for the attorney who’s represen t i n g [HLF].” The court then stated that it would consider the issue further. On July 20, 2007, the fifth day of voir dire, the court again addressed the issue of Freedman Boyd’s representation of HLF. Hollander stated that “if there is no one here to represent Holy Land[, and] since we don’t know exactly what its status is[,] [Freedman Boyd] can’t represent Holy Land. ” H o llander explained that Freedman Boyd s h ared the Government’s concern about the validity of the HLF conflict waiver and that there was no HLF representative to

a n s w e r the court’s questions during a Rule 44 colloquy. Therefore, she concluded that Freedman Boyd “can’t represent Holy L a n d under those circumstances.” The Government responded that “[w]ith regard to Holy Land Foundation, I don’t know what we do. Maybe remain unrepresented for the trial.” H ollander then stated that Freedman Boyd “will withdraw from representing Holy Land at this time. Ms. Duncan and I will continue to represent Mr. Baker.” Th e G overnment did not object to Freedman Boyd’s withdrawal, and the court implicitly accepted Holl an der’ s with dr aw al

. Th e c o urt moved o n t o di scussing how to introduce the various defense attorneys to the jury and stated, “So I guess on Holy Land, I can simply s ay that it is

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unrepresented.” The trial proceeded with HLF being unrepresented by counsel, and the trial ended in a mistrial. On September 22, 2008, the first day of the second trial b e f ore District Judge Solis, the issue of HLF’s representation arose again. The Government told the court “that the Holy Land Foundation Corporation is a Defendant and that there will be evidence in that regard.” The Government w e n t o n t o state that HLF “has no employees and no officers and so there is no one to represent it, but it is an essential part of this lawsuit because of the forfeiture provisions and the funds that are being held subject to being forfeited.” Judge Solis entered

a plea of not guilty on behalf of HLF. During the second trial, n o c o u n s e l for H LF made an opening statement, examined witnesses, or gave a clos i n g statement. The jury found HLF gu i l t y o n all counts. On May 27, 2009, HLF was sentenced without defense counsel. The court ordered that HLF “be placed on

a one-year supervised release” and that all of HLF’s frozen assets, including its bank accounts, were forfeited. The court also entered a money judgment in the amount of $12,400,000. On June 5, 2009, Attorney Ranjana Natarajan, Director of the N ational Security C l i nic at the University of Texas School of Law, filed a notice of
appearance and a notice of appeal on behalf of HLF. Natarajan had no prior connection to the case. The Government filed a motion to strike both the notice of appe a r a n c e and the notice of appeal on the ground that HLF had not authorized Natarajan to represent HLF. Natarajan responded in part that the district court had been divested of jurisdiction. The Government then filed with this court a motion for a limited remand s o t h a t t h e district court could make findings regarding Natarajan’s authority to r e p r e s ent HLF on appeal. We entered a limited remand order for the district court to address “Ms. Natarajan’s

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authority to r e p resent HLF, whether HLF was represented at trial, and the corporate status of HLF at relevant times.” On January 12, 2010, the district court conducted an evidentiary hearing, in which the court heard argument from Natarajan and the Gov e r n m e n t and took testimony from Hollande r a n d C l ine, among others. The district court subsequently issued a n O rder (the “Order”), in which the court made its determinations regarding the questions presented in the remand. Regarding the issue of HLF’s representation, the district court found that Freedman Boyd represented Baker and HLF from September 2004 until July 20, 2007, and that this joint representation did not violate the defendants’ Sixth Amendment right to conflict

- f r e e counsel. The court explained that there was

no potential or actual conflict of interest, because the defendants’ “merger of interests and identities was so clear and pronounced” that “[t]heir defenses had t o be one and the same.” Next, the court held that Freedman Boyd ef f e c t iv e l y withdrew from repres enting HLF on July 20, 2007, when Hollander stated to Judge Fish that “[w]e will withdraw from representing Holy Land at this time.” The court explained that “[t]he Government acqui e s c e d , ” “ [n] o o n e obj e cted to the withdrawal,” and “[t]he Court implicitly accepted the withdrawal.” However, the district court went on to explain in the Ord e r that, during the second trial, “[n]o one informed this Court that Freedman B oyd no longer represented HLF,” and “[n]othing said o r done during the second trial alerted t h e Court to the fact that HLF did not have legal representation.” The cour t stated, “The only party with cert a i n k nowledge of the likely effect of this withdrawal was Ms. Hollander.” The Order then stated: This Court requires attorneys in criminal cases to abide by certain standards of conduct, including owing duties of candor and clari t y to the judiciary.

. . . Ms. Hollander’s failure to disclose to Judge Fish the potential effect of her firm’s withdrawal before the first trial and her failure to disclose to the undersigned the potential effect of HLF

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being unrepresented during the second trial showed a complete lack of candor and a failure to diligently inform the Court of a material fact. The court next found that HLF, although an unrepresented corporation,

was “de facto” represented by the counsel of its co-defendants at trial. The court

e xplained that “these seven attorneys, representing the three individ u a l co-defendants [El-Mezain, Baker, and Elashi] – all with the same d e f e n s e and defense strategy – are deemed to have adequately represented the interests of t h e u n r e presented corporate entity that was operated by those individual co-defendants.” Next, the court addressed the issue of Natarajan’s authority to represent HLF on appeal. The Order stated , “T h e e vi d ence is undisputed that no HLF representative authorized or directed Ms. Natarajan to file a notice of appeal on HLF’s behalf. No one has i d e n t i f ied any natural person (other than Co-Defendants) with the necessary authority to direct HLF’s appellate representation.” The court noted that “Ms. Natarajan proposes that the Court appoint a third-party ‘tr u s t e e ’ w h o can speak and act for HLF and direct Ms. N a t arajan as HLF’s counsel.” The court concluded that “[t]he u n i qu e circumstances of this case require the Court to find a sui generis solu t i o n . . . . Therefore, in the interests of fairness a n d ensuring justice for HLF, the Court hereby exercises its inherent authority to appoint Ms. Natarajan as HLF’s pro bono counsel.” The court explained that “Ms. Natarajan’s authority to represent HLF hereby relates back to the date of her in i ti a l appearance and notice of appeal – June 5 , 2 0 0 9

. ” The Order lastly discussed HLF’s corporate status, finding that on March 3, 2003, California suspended HLF’s powers, rights, and privileges due to nonpayment of franchise taxes. 5 3

Nat arajan argues on ap p e a l that as of July 2007, due to nonp ayme nt of fr anchi se 5 3 taxes , HLF wa s a “d efu nct” cor por atio n and h ad no dir ect ors or off icer s bound by fid uciary 164 Case: 09-10560 Document: 00511687541 Page: 164 Date Filed: 12/07/2011No. 09-10560

2. HLF’s appeal H LF appeals its conviction and sentence as well as certain findings in th e 5 4 Order. It argues that it was denied its Sixth Amendment right to counsel when it was tried, convicted, and sente n c e d w i t h out the benefit of counsel. To the extent that HLF was “de facto” represented by the counsel of its co-defendants,

a s t h e di strict court found, HLF argues that its Sixth Amendment rights t o conflict-free counsel and to effective assistance of counsel were denied. HLF also asserts that its rights under the Confrontation Clause, the Due Process Clause of t h e Fifth Amendment, and Federal Rule of Criminal Procedure 43 were violated when it was tried, convi c t e d, and sentenced without counsel. HLF contends that, due to these violatio n s , w e s hould vacate its conviction and sentence and remand the case to th e di s t rict court for further proceedings. Before w e c a n a d dress the merits of HLF’s appeal, we must first decide whether we have jurisdiction over the appeal. The Government argues that we lack appellate jurisdiction because (1) the district cour t e rred in appointing

dut y to act on its behalf

. She is inco rre ct. U n d e r Calif orni a law , a Calif

orni a cor por atio n’s fai lure to pay fr anchi se taxes doe s not res ult in the dis so luti on of the cor por atio n, but me rely res ults in a sus pend ed st atus

. See C AL

. R EV

. & TA X

. C ODE § 23301; see a ls o MARSH ’ S C AL

. C ORP

. L. § 21.1 8 (“Wherethe rights and privileges of a corp orat ion aresus pend ed forfailur e to pay fr anchi se taxes , it is no longer tre ated as having bee n d i ss olved or its cor por ate fr anchi se ‘f

orf eit ed, ’ but it is me rely subject ed to certain dis abilit ies u n l e s s a n d until it is ‘re vived’ by the paym ent of the back taxes and pena lti e s . ” ). Du ring sus pens ion, the cor por atio n is pr ohibit ed fr om exerc isi ng cer tain right s, inclu ding, inter al ia , t h e r i gh t t o pr os ecut e or def

end agains t a civil law sui t and the right to ente r into a cont rac t. See MAR SH ’ S C AL

. C ORP

. L. § 2 1.18

. Alt hough a sus pend ed cor por atio n i s subjectt o t hes e l im itat ions , the cor por atio n cont inues to exis t as an enti ty. Furt herm ore , the cor por atio n can be “re vived” to its full pow ers by the paym ent of del inquent taxes and pena l t i e s and the iss uance of a cer tif icat e of revi v o r . See CAL

. R EV

. & TA X

. C ODE § 23305. A majo rit y of the dir ect ors or an off icer , a m o n g o t h e r s, can app ly for a cer tif icat e of revivor on behalf of the cor por atio n. Id. Altho ugh we need not dec ide the iss ue, this at leas t sugges ts that the dir ect ors and off icer s of suc h a cor por atio n c onti nue in off ice.
Natar ajan, as app oint ed app ellat e c ouns el forH LF, mad e the fol low ing ar gume nts 5 4 in her brie fs , pur portedly on behalf of HLF. In this se cti on of the opi nion, for the s ak e of clar ity, w e a ttr ibutet o H LF allof t he argum ents m adeinN atar ajan’s ap pel latebrief s. 165 Case: 09-10560 Document: 00511687541 Page: 165 Date Filed: 12/07/2011No. 09-10560

Natarajan as appellate counsel and (2) Natarajan ha d n o a u thority to file a notice of appeal on HLF’s behalf. The Government contends that HLF’s notice 5 5 of appeal was defective and that we must therefore dismiss the a p p e a l

. HLF argues th a t we have jurisdiction because the district court had the inherent authority to appoint Natarajan as appellate coun s el and there was sufficient authorization under the circumstances. For the followin g re a s o n s , w e agree with the Government that HLF’s notice of appeal was unauthorized and thus invalid, thereby depriving us of jurisdiction. We review the district court’s legal conclusions de novo . See, e.g., United States v. Gomez , 623 F.3d 265, 268 (5th Cir. 2010); Magallon v. Livingston , 453 F.3d 268, 271 (5th Cir. 2006). The district court’s factual findings are reviewed for clear error. G omez , 623 F.3d at 268. “We review de novo a district court’s invocation of its inherent power . . . .” F. D .I.C. v. Maxxam, Inc. , 523 F.3d 566, 590 (5th Cir. 2008); see a ls o P o s i t ive Software Solutions, Inc. v. New Century Mortg. Corp. , 619 F.3d 458, 460 (5th Cir. 2010). “[W]hen these inherent powers

are invoked, they must be exercised with ‘restraint a n d di s cretion.’ ” Gonzalez

v . Trinity Marine Group, Inc. , 117 F.3d 894, 898 (5th Cir. 1997) (c i t a t i o n omitted). A district court’s inherent power “is not a broad reserv o i r o f power, ready at an imperial hand, but a limited source; an implied power squeezed from the need to make the court function.” F.D.I.C. , 523 F.3d at 591. In the Order, the district court decided from the unusual circumstances of the case “to find a sui generis solution” and appoint Natarajan as HLF’s pro bono counsel, with her representation relating back to the date of her notice of appeal. HLF argues that the district court can exercise its inherent authority to appoint

The Go vernm ent pr es ents thes e argum ents on cro ss -ap pea l fr om the dis tri ct cour t’s 5 5 app oint me nt of Nat arajan, but the Go vernm ent’ s argum ents are mo re ak in to a juris dic tio nal c h a l l e n g e to HLF’ s app eal. There for e, altho ugh we do not cons ide r the Go vernm ent’ s argum ents inthe for m of a c ros s- app eal, we con sid er the m in det erm ining wh ethe r wehave app ellat e jur isd iction. 166 Case: 09-10560 Document: 00511687541 Page: 166 Date Filed: 12/07/2011No. 09-10560

counsel when necessary, and therefore Natarajan’s appointment was proper. In support of its argument, though, HLF cites only cases inv o lvi n g a trial court appointing counsel at the trial stage of the proceeding. See, e.g., United States 5 6

v. Bertoli , 994 F.2d 1002, 1016–18 (3d Cir. 1993); United States v. Accetturo , 842 F.2d 1408, 1412–15 (3d Ci r . 1988); United States v. Rivera , 912 F. Supp. 634, 639–40 (D.P.R. 1996); United States v. Crosby , 24 F.R.D. 15, 16 (S.D.N.Y. 1959). In the instant case, the district court exercised its inherent authority to appoint appellate counsel. We n e e d n ot address whether it was within the district court’s inherent authority to appoint appellate counsel because, even assuming the appointment of Natarajan was within the district court’s inherent authority, there remains the issue whether Natarajan had the necessary authorization to file and pursue the appeal on behalf of HLF. It is undisputed that no HLF representative authorized Natarajan to file

a notice of appeal on HLF’s behalf. Ins t e a d, the district court itself appointed Natarajan as HLF’s counsel and retroactively authorized HLF’s notice of appeal under its inherent authority. It is well established, however, that “the decision to appeal rests with the defendant .” Ro e v. Flores-Ortega , 528 U.S. 470, 479 (2000) (emphasis added); see also L E GAL E T H I C S , LAWY E R ’ S D E S K B O O K O N P R O F E S S I O NAL R E S P O N S I B I L I TY § 1.2–2(a) (2011–12 ed.) (“On these significant and central issues, such as the qu e s t i o n of

. . . whether to appeal, the client should have the final say.”); R E S TAT E M E N T (T H I R D ) O F LAW G O V E R N I N G LAWY E R S § 22(1) ( 2 0 00) (“[T]he following and comparable decisions are reserved to the client[:]

. . . whether to appeal in a civil proceeding or criminal prosecution.”). A defendant is not required to pursue an appeal at all. Because the decision to appeal belongs exclusively to the defendant, the defendant’s counsel may not prosecute an appeal—even if counsel believes it to be in the defendant’s best

We expr es s no opi nion on the dis tri ct cour t’s inher ent pow er to app oint tri al couns el 5 6 foran unrep res ente d cor por atio n. 167 Case: 09-10560 Document: 00511687541 Page: 167 Date Filed: 12/07/2011No. 09-10560

interest—if the defendant chooses to forgo an appeal. For example, in Smith v. Armontrout , 857 F.2d 1228, 1230 (8th Cir. 1988), the Eighth Circuit held that a notice of appeal filed by court-appointed counsel on beha l f of a capital murder defendant sentenced to death was unauthorized where the defendant indicated that he wanted the appeal dismissed. The court found that the notice of appeal was therefore ineffective and dismissed the appeal. Id. Here, because the important decision whether to appeal is the province of the defendant, not of the district court or o f d e f e n se counsel, we conclude that the district court erred in assuming that it could authorize the appeal on behalf of HLF. Natarajan lacked authorizatio n f r o m HLF to file an appeal. As an

a c a d e m ic with no connection to HLF, Natarajan took it upon herself to fil e a notice of a p p e al on HLF’s behalf. The district court’s decision to appoint Natarajan with purported authority to appeal, although laudable in its intent, does not overcome the deficiency. The notice o f a p peal was unauthorized and thus invalid. We hold, therefore, that HLF’s appeal must be dismissed in light of the defective notice of appeal. 5 7 Our foregoing analysis regarding a district court’s authority to authorize

a n o t i c e o f a p p e al is expressly confined to the facts of this case. We hold only that the district court could not authorize a notice of appeal filed on behalf of an

Natar ajan cont ends that, if wef ind thatt he noti ce of app eal wa s unauth orize d, w e 5 7 sho uld ord er an equit able rem edy to allow H L F t o app eal its convic tio n and se nten ce. Nat arajan pos its that we coul d equit ably excus e the ins uff icie n t autho rizat ion or app oint a thir d par ty to se rve as HLF’ s r e p r e s e n t a t ive to autho rize and dir ect the app eal. The Go vernm ent res pond s that HLF is not wi thou t pr oce dur al avenues to chall enge its convic tio n and se nten ce, as HLF may coll ater ally att ack its convic tio n t hrough a pet itio n for a wr it of err or coram nobi s . See Uni ted States v. Rad- O- Lite of Philade lp hia, Inc. , 612 F

. 2d 740, 744 (3dCir

. 1979) (holding t hat a writ of coram no bis is the me chani smt hrough wh ich “p ers ons not held in cus tody can att ack a c o nvi c t ion for fund ame ntal def ect s, suc h as inef

fec tive ass ist ance of couns el” and that “[c] ourt s regula rly have allow ed cor p o r atio ns to pet itio n for cor am nobis ”)

. We need not dec ide this ques tio n on app eal, and we ther efo re dec line to im pos e the equit able rem edy urgedby Nat arajan. 168 Case: 09-10560 Document: 00511687541 Page: 168 Date Filed: 12/07/2011No. 09-10560

unrepresented defendant corporation by an attorney with no connection to the defendant and where no corporate representative authorized the appeal. For the foregoing reasons, we dismiss HLF’s appeal for lack of jurisdiction. 3. Hollander’s appeal Hollander separately appeals the Order. Specifically, she argues that we should vacate the following portion of the Order: “Ms. Holla n d e r’s failure to disclose to Judge Fish the potential e f f e c t o f her firm’s withdrawal before the first trial and her failure to disclose to the undersign e d t h e p o t e ntial effect of HLF being unrepresented duri n g t h e s econd trial showed a complete lack of candor and a failure to diligently inform the Court of a material fact.” Hollander asserts that the district court erred in finding that she committed professional misconduct. Although Hollander may well be correct that the distri c t court’s criticism was undeserved in light of the numerous discussions about HLF’s representation by all parties during both trial proceedings, we do not reach the merits of her appeal. We concl ude that Hollander’s appeal does not present a justiciable case or controversy, and we therefore dismiss the appeal f o r lack of jurisdiction. Hollander correctly notes that in Walker v. City of Mesquite , 129 F.3d 831 (5th Cir. 1997), we set out this circuit’s rule as to whether a trial court’s sanction of attorney conduct is a reviewable appellate issue. In Walker , we held that “the importance of an at t o r n e y’ s professional reputation, and the imperative to defend it when neces s a ry , obviates the need for a finding of monetary liability

or other punishment as a requisite for the appeal of a court order finding profes s i o n a l misconduct .” Id. at 832–33 (emphasis added). Therefore, under Walker , if the Order had contained a finding that Hollander had c o m m i t t ed professional misconduct, we would have jurisdiction to review her appeal. W e find, however, that the contested language in the Order may hav e questioned counsel’s performance, but it stopped short of an actual finding of

169 Case: 09-10560 Document: 00511687541 Page: 169 Date Filed: 12/07/2011No. 09-10560

professional misconduct. Cf. Walker , 129 F.3d at 832–33 (holding that the trial court’s finding that the attorney was “guilty of blatant misconduct” constituted “a blot on [the attorney’s] professional record” and presented a reviewable appellate issue). The district court was not engaged in a disciplin a ry hearing,

nor did the court expressly conclude that Holla n d e r vi olated a legal or ethical duty or rule. Its off-the-cuff remark did not constitute the i m p o s ition of a sanction. We think the court’s statement is more akin to a “‘negative comment

or observation from a judge’s pen about an attorney’s conduct or performance,’” which, unlike a finding of professi o n al misconduct, does not present an appealable issue. See Butler v. Biocore Med. Techs., Inc. , 348 F.3d 1 1 63, 1168 (10th Cir. 2003) ( quoting United States v. Gonzales , 344 F.3d 1036, 1047 (10 th Cir. 2003)) (internal quotation marks omitted); see also K e a c h v. Cnty. of Schenectady , 593 F.3d 218, 225 (2d Cir. 2010) (“An appellate court can reverse

an order imposing a sanction or making a finding that an attorney has violated

a rule of professional conduct; it has no power to reverse a judge’s poor opinion of the skill or trustworthiness of a lawyer who has appeared before him or her.”). Ther e f o r e , because the Order did not impose a sanction or make a finding of
pro fessional misconduct, we have no jurisdiction over Hollander’s appeal, and the appeal is dismissed. III. CONCLUSION For the foregoing reasons, we AFFIRM t h e judgments of conviction and

s e nt e nc e s f

or th e in divi du al def

e n d ant s , Moh a m m a d E l

- M e z ain, Ghassan Elashi, Shukri Abu Baker, Abdulrahman Odeh, and Mufid Abdulqader. We DISMISS for lack o f a p p e l l ate jurisdiction the separate appeal filed by the Holy Land Foundation for Relief and Development, and we DISMISS for lack of appellate jurisdiction the appeal filed by Nancy Hollander.

170 Case: 09-10560 Document: 00511687541 Page: 170 Date Filed: 12/07/2011