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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA §

§

V. § 

§ 

HOLY LAND FOUNDATION FOR § 3:04-CR- 240- P

RELIEF AND DEVELOPMENT (1) § 

also known as the “HLF” §

SHUKRI ABU BAKER (2) §

MOHAMMAD EL-MEZAIN (3) §

GHASSAN ELASHI (4) § 

MUFID ABDULQADER (7) §

ABDULRAHAM ODEH (8) § 

DEFENDANTS’ JOINT MOTION TO PRECLUDE TESTIMONY OF 

STEVEN SIMON REGARDING THE REASONS WHY HAMAS

WAS DESIGNATED A FOREIGN TERRORIST ORGANIZATION

INTRODUCTION

As detailed below, the proposed testimony of prospective government witness Steven

Simon should be precluded because it does not address any issue relevant to the charges in this

case. Rather, the proposed testimony is of a character that, consistent with the statutory language

and Congressional intent, has been expressly excluded from other “material support”

prosecutions. In that context, the absence of relevance and probative value renders such

testimony inadmissible pursuant to Fed. R. Evid. 401, 402, and 402.

Defendants herein have been charged with conspiracy to provide and providing material

support and resources to Hamas in violation of 18 U.S.C. §2339B(a)(1). Hamas has been

designated by the United States Secretary of State as a Foreign Terrorist Organization

(hereinafter “FTO”). At trial, through Mr. Simon, the government seeks not only to present

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testimony of the fact of that designation – unquestionably an element of the offense and therefore

relevant – but also testimony from Mr. Simon regarding why Hamas was so designated. 

The same analysis applies to Counts Eleven through Twenty-One, which allege

violations of the International Emergency Economic Powers Act (hereinafter “IEEPA”) based on

Hamas’s designation as a Specially Designated Terrorist (hereinafter “SDT”) pursuant to

Executive Order 12947.

However, such testimony is not admissible because the reasons for, or even the validity

of an FTO designation, do not constitute an element of the offense, and are not otherwise

relevant to a prosecution under §2339B. Indeed, criminal defendants who have attempted to

challenge the propriety of an FTO designation in the context of a criminal prosecution have been

uniformly denied that opportunity because, as the statutory framework, the case law, and the

underlying legislative history dictate, that is not an issue at all for juries to consider. Thus, the

reasons why Hamas was designated an FTO are neither relevant nor admissible herein. 

Moreover, any testimony about the FTO designation process that would extend beyond the fact

of the designation itself would be unduly prejudicial, would serve only to confuse and mislead

the jury as to the issues in the case, and should be precluded under Rule 403.

ARGUMENT

TESTIMONY WHY HAMAS WAS DESIGNATED 

AN FTO SHOULD BE PRELUDED BECAUSE

THE REASONS FOR HAMAS’S DESIGNATION 

ARE NOT PROPERLY AT ISSUE IN THIS CASE 

A. The Reasons Why Hamas Was Designated an FTO Do Not Constitute An 

Element of the Charged Offense(s), and Are Not a Proper Subject of Testimony 

In its Witness List circulated August 29, 2008 (Document 1160), the government

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 As noted ante, the same principles and analysis apply to Hamas’s designation as an

SDT under EO 12947 and IEEPA. That, too, is irrelevant, on the same ground as testimony

about the FTO designation: the reasons for the SDT designation is not an element, defendants

have no ability to challenge the designation, and, therefore, the government should not be

permitted to explain the reasons for it.

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provided the following rationale for Mr. Simon’s testimony: “Mr. Simon will testify about the

reasons why Hamas was designated as a terrorist organization by the United States

Government.” However, that is not a proper subject for testimony at this trial.

The Indictment alleges that defendants violated 18 U.S.C. § 2339B. Counts One, and

Counts Two through Ten, respectively, charge defendants with “conspiracy to provide material

support to a foreign terrorist organization” and “providing material support to a foreign terrorist

organization” in violation of 18 U.S.C. §2339B(a)(1).1 A person who “knowingly provides

material support or resources to a foreign terrorist organization, or . . . conspires to do so,” is in

violation of §2339B(a)(1) if that person also possesses:

knowledge that the organization is a designated terrorist

organization (as defined in subsection (g)(6) [meaning an

organization designated as a terrorist organization under Section

219 of the Immigration and Nationality Act]), that the

organization has engaged in or engages in terrorist activity (as

defined in section 212(a)(3)(B) of the Immigration and Nationality

Act) or that the organization has engaged in or engages in

terrorism (as defined in section 140(d)(2) of the Foreign Relations

Authorization Act Fiscal Years 1988 and 1989). 

§2339B(a)(1) (emphasis added).

Thus, as the plain language of §2339B(a)(1) demonstrates, to establish that a defendant

provided or conspired to provide material support to an FTO in violation of §2339B(a)(1), the

government must prove the following elements (in addition to the knowing provision of material

support): (a) the fact of that FTO designation; and (2) that the defendant knew of that FTO 

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designation (or knew of the terrorist activities of that organization). The reason(s) for the

designation, though, do not constitute an element of proving a violation of § 2339B(a)(1). See

United States v. Taleb-Jedi, ___ F. Supp. 2d __, 2008 WL 2832183 at *9 (E.D.N.Y. July 23,

2008), citing United States v. Hammoud, 381 F. 3d 316, 331 (4th Cir. 2004), vacated on other

grounds, 543 U.S.1097 (2005), reinstated in part, 405 F.3d 1034 (4th Cir. 2005) (“Congress has

provided that the fact of an organization’s designation as an FTO is an element of § 2339B, but

the validity of the designation is not”). See also McMillan v. Pennsylvania, 477 U.S. 79, 85

(1986) (the “legislature’s definition of the elements of the offense is usually dispositive”). 

Uncontroverted case law is consistent with the unambiguous language of §2339B(a)(1) in

providing that the basis for an FTO designation is not relevant to proving the elements of

§2339B. For example, most recently, in Taleb-Jebi, after surveying the case law, the Court

concluded that when an organization has been designated an FTO under §219 of the Immigration

and Nationality Act (hereinafter “INA”), and the proof establishes that the defendant provided

material support to that organization, that defendant “meets the first element of [§2339B(a)(1)],

and it is irrelevant whether the designation is valid or not.” Taleb-Jedi, 2008 WL 2832183, at

*10; see also. United States v. Sattar, 272 F. Supp. 2d 348, 367 (S.D.N.Y. 2003) (“the element

of the offense is the designation of [the organization] as an FTO, not the correctness of the

determination, and the Government would be required to prove at trial that [the organization]

was in fact designated as an FTO”). 

In Sattar, the Court explained why the underlying basis for the designation is not

pertinent in a §2339B prosecution:

[t]he designation of [the organization] as an FTO had no effect on

the defendants. While the defendants can challenge the allegation

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that they violated § 2339B by providing material support to an

FTO or could contest that [the organization] was, in fact,

designated as an FTO, they cannot assert the due process claims of

the FTO and challenge the underlying designation. The element at

issue in this case is simply whether [the organization] was

designated as an FTO, and the defendants thereafter knowingly

provided, or conspired to provide, material support or assistance

to it, not whether the Secretary of State correctly designated [the

organization] as an FTO. 

Taleb-Jedi, 2008 WL 2832183, at *9 (quoting Sattar, 272 F. Supp. 2d at 364-365) (emphasis

added).

Similarly, in United States v. Afshari, 426 F. 3d 1150 (9th Cir. 2005), the Ninth Circuit

pointed out that “under § 2339B, if defendants provided material support for an organization that

has been designated as a terrorist organization...they commit the crime, and it does not matter

whether the designation is correct or not.” Id., at 1155-56.

As a result, the factors that justify the designation are neither necessary nor germane, and

the government need not provide testimony as to the nature of the designated FTO in order to

establish the elements of the charged offense. Ultimately, with regard to the designation of an

FTO, the “only element that the Government needs to prove is that the [FTO] was designated as

an FTO during the time period covered in the Indictment.” Id. at 11. Any testimony regarding

reasons, such as that proffered with respect to Mr. Simon, is entirely irrelevant.

B. Congressional Intent, Confirmed By Subsequent Case Law, Establishes That the

Reasons for and Validity of an FTO Desigation Are Not Proper Subjects for a Jury

Congressional intent also removes the validity of an FTO designation from a criminal

jury’s consideration. For example, 8 U.S.C. §1189(a)(8) provides that “a defendant in a criminal

action . . . shall not be permitted to raise any question concerning the validity of the issuance of

[an FTO] designation as a defense or an objection at any trial or hearing.” See Taleb-Jedi, 2008

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 Here, defendants did not at any point in the first trial seek to contest or raise the issue

of the propriety of Hamas’s designation. Nor will it be contested during the retrial.

3 As set forth in the Superceding Indictment, Hamas was designated an FTO under §219

of the INA, which, as amended, is codified at 8 U.S.C. § 1189, and entitled “Designation of

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WL 2832183, at *4; Sattar, 272 F. Supp at 362-363. 

In Taleb-Jedi, when the defendant sought to challenge the FTO designation of the

organization in that case, the Court held that §1189(a)(8) precluded the defendant from raising at

trial whether the designation was correct and/or constitutional. Taleb-Jedi , 2008 WL 2832183,

at *4, *6. (“a defendant in a criminal action under § 2339B is precluded from raising any issue

concerning the validity of the organization’s designation as an FTO during his or her criminal

proceedings”).2

 Of course, such preclusion presupposes that the issue is not relevant or capable

of contest. Therefore, symmetrically, the issue is not relevant for the government to explore,

either.

In Taleb-Jedi, the Court explained the Congressional intent underlying the prohibition on

raising the bona fides of the designation issue at trial, pointing out that §1189(a)(8) was enacted

because “Congress delegated the authority to make such distinctions [as to whether to

characterize an organization as a terrorist organization] to the Secretary of State and specifically

took this policymaking ‘out of the hands of United States Attorneys and juries.’” Taleb-Jedi

,2008 WL 2832183, at *10; see also Afshari, 426 F. 3d at 1155 (“Congress clearly chose to

delegate policymaking authority to the President and Department of State with respect to

designation of terrorist organizations, and to keep such policy making authority out of the hands

of United States Attorneys and juries”).

In that context, Congress has gone to great pains in 8 U.S.C. § 11893

 to set forth

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Foreign Terrorist Organizations.”

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procedure as to who can determine an FTO designation, who can challenge it, and who can

evaluate it once it is made. As the Ninth Circuit concluded in Afshari, “§1189(a)(1) sets out a

carefully articulated scheme for designating foreign terrorist organizations.” 426 F. 3d at 1154.

Under that scheme, the Secretary of State is afforded authority to make specific findings that the

organization is a foreign organization that engages in terrorist activity as defined by 8 U.S.C. §

1182(a)(3)(B). See 8 U.S.C. § 1189(a)(1)[.]” Id. Once an FTO designation is made, Congress

permits the designated organization to seek judicial review of the designation only before the

Court of Appeals for the District of Columbia Circuit. See 8 U.S.C. § 1189(c)(1). 

In addition, Congress or the Secretary can revoke a designation, but with the exception of

the D.C. Circuit, matters pertaining to designation are wholly out of the hands of the judiciary.

See 8 U.S.C. § 1189(a)(5) & (6). Moreover, the validity of a designation is at all times out of the

hands of juries, defendants, and prosecutors. See generally 8 U.S.C. § 1189; Taleb-Jedi , 2008

WL 2832183, at *10. See also Afshari, 426 F. 3d at 1155. 

Accordingly, Congress not only intended for defendants to be unable to raise the issue of

the validity of an FTO’s designation at trial, but intended that the validity of an FTO designation

be precluded from a criminal trial entirely.

C. The Lack of Relevance of Testimony Regarding the Reasons for 

Hamas’s FTO Designation Renders Such Testimony Inadmissible, 

and Unduly Prejudicial, Under Fed. R. Evid. 401, 402, and 403

Rule 401 of the Federal Rules of Evidence defines “relevant” evidence as evidence

“having any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

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evidence.” FED. R. EVID. 401. Rule 402 requires the exclusion of irrelevant evidence. FED. R.

EVID. 402. 

As the Fifth Circuit has stated, “[e]vidence in criminal trials must be ‘strictly relevant to

the particular offense charged.’” United States v. Anderson, 933 F.2d 1261, 1267-68 (5th Cir.

1991), quoting Williams v. New York, 337 U.S. 241, 247 (1949). See also United States v. Hays,

872 F.2d 582, 587 (5th Cir. 1989) (noting that appellate review of evidentiary rulings in criminal

cases is “necessarily heightened”). As a result, “[t]he admission of irrelevant facts that have a

prejudicial tendency is fatal to a conviction, even though there was sufficient evidence to sustain

the verdict.” Id., quoting United States v. Allison, 474 F.2d 286, 289 (5th Cir. 1973). 

Moreover, it is imperative that the government not be allowed to introduce evidence that

is not only irrelevant to the charges, but which also is unduly prejudicial to the defendants. Rule

403 permits exclusion of relevant evidence when its “probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury,” or by

“considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” 

FED. R. EVID. 403. 

The Advisory Committee’s notes to Rule 403 define “unfair prejudice” as “an undue

tendency to suggest decision on an improper basis, commonly though not necessarily, an

emotional one.” Consequently, the “major function [of Rule 403] is limited to excluding matter

of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial

effect.” United States v. McRae, 593 F.2d 700, 707 (5th Cir. 1979). 

Here, testimony as to the reasons for Hamas’s FTO designation is not relevant as defined

by FED. R. EVID. 401, must be excluded as irrelevant under FED. R. EVID. 402, and is unduly

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prejudicial and should be precluded under FED. R. EVID. 403. 

In order to qualify as relevant under FED. R. EVID. 401, testimony must “hav[e] any

tendency to make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence.” FED. R. EVID.

401. As has been established ante, the only fact relevant to Hamas’s FTO designation is the fact

of designation itself. See e.g., Sattar, 272 F. Supp. 2d at 367 (“the element of the offense is the

designation, . . . the Government would be required to prove at trial that [Hamas] was in fact

designated as an FTO”). 

In proving this fact, though, “it is irrelevant whether the designation is valid or not.”

Taleb-Jedi, 2008 WL 2832183, at *10. Thus, testimony regarding the reasons for Hamas’s FTO

designation, indeed anything about the designation that goes beyond the mere statement of fact

that the organization has been designated as an FTO , has no tendency at all to make the fact of

Hamas’s designation more or less probable than it would be without such testimony. As a result,

such testimony is clearly not relevant under FED. R. EVID. 401. 

Likewise, testimony as to Hamas’s designation that goes beyond the simple fact of the 

designation is obviously irrelevant under FED. R. EVID. 402. As demonstrated ante, all of the

courts that have addressed the issue have precluded such evidence, and describe testimony that

goes beyond the fact of a designation to the substance of that designation as “irrelevant,” or state

that the validity of a designation “does not matter.” See e.g., Taleb-Jedi, 2008 WL 2832183, at

*10 ( “it is irrelevant whether the designation is valid or not”); Afshari, 426 F. 3d at 1155-56 (“it

does not matter whether the designation is correct or not”).

Also, testimony regarding the reasons for Hamas’s designation would be contrary to Rule

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 As noted ante, at n.2, defendants do not dispute in any way Hamas’s designation, or

the reasons therefor. 

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 Testimony about the reasons underlying Hamas’s designation could also unfairly

buttress any significance of the subsequent designation of defendant Holy Land Foundation,

should that latter designation be admitted in evidence.

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403. Under Rule 403, even relevant evidence is excluded when its “probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury,” or by “considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” FED. R. EVID. 403. Not only would testimony about the

reasons for Hamas’s designation that goes beyond the fact of the designation completely

irrelevant, but: (1) it completely lacks probative value and is thus substantially outweighed by

the danger of unfair prejudice; (2) it would mislead the jury to believe that the validity of

Hamas’ designation is at issue4 and thus confuses the issues in the case;5 (3) to the extent any of

Mr. Simon’s proffered testimony is relevant and admissible, it would be cumulative of Matthew

Levitt’s testimony, which will cover Hamas’s history, evolution, structure, and activities; and

(4) it would cause undue delay and is a waste of time because the reasons for Hamas’s

designation have no legitimate bearing on the outcome of this case. 

In McRae, the Fifth Circuit made clear that Rule 403's function is designed to “exclud[e]

matter of scant or cumulative probative force, dragged in by the heels for the sake of its

prejudicial effect.” 593 F.2d at 707. Testimony about the reasons for Hamas’s designation that

goes beyond the fact of its designation as an FTO does not merely have scant probative force, it

has no probative value whatsoever. Thus, such evidence is irrelevant, unduly prejudicial and

should be precluded under Rule 403. 

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CONCLUSION

For all the reasons set forth above, it is respectfully submitted that the proffered

testimony of Steven Simon, covering “the reasons why Hamas was designated as a terrorist

organization by the United States Government[,]” is inadmissible and should be precluded in its

entirety.

Respectfully submitted,

 

/s/ Joshua L. Dratel 

JOSHUA L. DRATEL 

New York Bar Card No. 1795954

Email: jdratel@joshuadratel.com 

AARON J. MYSLIWIEC

New York Bar Card No. 4168670

Email: amysliwiec@joshuadratel.com

LAW OFFICES OF JOSHUA L. DRATEL, P.C. 

2 Wall St. 

3rd Floor 

New York, NY 10005 

Office: 212.732.0707 

ATTORNEYS FOR DEFENDANT 

MOHAMMAD EL-MEZAIN (03)

NANCY HOLLANDER

New Mexico Bar Card No. 1185 

Email: nh@fbdlaw.com

JOHN W. BOYD

New Mexico Bar Card No. 286

Email: jwb@fbdlaw.com

THERESA M. DUNCAN

New Mexico Bar Card No. 12444

Email: tmd@fbdlaw.com

FREEDMAN BOYD DANIELS 

HOLLANDER GOLDBERG & IVES P.A.

20 First Plaza, Suite 700

Albuquerque, New Mexico 87102

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Office: 505.842.9960 

Fax: 505.842.0697 

ATTORNEYS FOR DEFENDANT

SHUKRI ABU BAKER (02)

LINDA MORENO

Florida Bar 0112283

LINDA MORENO, P.A.

P.O. Box 10985

Tampa, Fl 33679

Office: 813.247.4500

Email: linbianca@aol.com

JOHN D. CLINE

JONES DAY

555 California Street, 26th Floor

San Francisco, CA 94104-1500

Office: (415) 875-5812

Email: jcline@jonesday.com 

 

ATTORNEYS FOR DEFENDANT

GHASSAN ELASHI (04)

MARLO P. CADEDDU

Texas Bar Card No. 24028839

LAW OFFICE OF MARLO P. CADEDDU, P.C.

3232 McKinney Avenue, Suite 700 

Dallas, TX 75204

Office: 214.220.9000 

Fax: 214.744.3015

Email: cadeddulaw@sbcglobal.net

ATTORNEY FOR DEFENDANT 

MUFID ABDULQADER (07)

GREG WESTFALL

Texas Bar Card No. 00788646

WESTFALL, PLATT & CUTRER

101 Summit Avenue, #910

Fort Worth, TX 76102

Office: 817.877.1700

Fax: 817.877.1710

Email: westfall@wpcfirm.com

ATTORNEY FOR DEFENDANT

ABDULRAHMAN ODEH (08)

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CERTIFICATE OF CONFERENCE

I hereby certify that I conferenced this Motion with counsel for the government and was

informed that the government opposes the relief requested.

 /s/ Aaron J. Mysliwiec 

AARON J. MYSLIWIEC

CERTIFICATE OF SERVICE

I hereby certify that on September 22, 2008, I electronically filed the foregoing with the

Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to

all counsel of record.

 /s/ Aaron J. Mysliwiec 

AARON J. MYSLIWIEC

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