IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

 DALLAS DIVISION 

 

UNITED STATES OF AMERICA, § 

 Plaintiff, § 

v. § 

 § 

 § NO. 3:04-CR-240-P 

SHUKRI ABU BAKER (2) § ECF 

MOHAMMAD EL-MEZAIN (3) § Hon. Jorge A. Solis 

GHASSAN ELASHI (4) § 

MUFID ABDULQADER (7) § 

ABDULRAHMAN ODEH (8) § 

 Defendants. § 

 

DEFENDANTS’ JOINT MOTION TO EXCLUDE SECOND TRIAL TESTIMONY OF 

DR. MATTHEW LEVITT

 Now come SHUKRI ABU BAKER, MOHAMMAD EL-MEZAIN, GHASSAN 

ELASHI, MUFID ABDULQADER and ABDULRAHMAN ODEH and file their Joint Motion 

to Exclude Second Trial Testimony of Dr. Matthew Levitt. In support thereof, they state as 

follows: 

I. BACKGROUND

 The government originally gave notice of its intent to present the expert testimony of Dr. 

Matthew Levitt on May 31, 2005. At that time, it stated: 

Specifically, Mr. Levitt will testify as to the history and formation 

of the Muslim Brotherhood and how the Palestinian branch of the 

Muslim Brotherhood became Hamas in the late 1980’s. Mr. Levitt 

will testify to the formation of Hamas, its charter, its history, how 

it is organized, including the political bureau, the military wing and 

the social wing. He will further testify as to who the leaders of 

Hamas were, and are, as well as some of the lesser known 

members who have affiliations with the Holy Land Foundation. 

Mr. Levitt will discuss, in detail, the structure of the social wing of 

Hamas, including zakat committees and the role they play in 

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Motion to Exclude Second Testimony 

By Dr. Matthew Levitt 

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distributing services and goods to the Palestinian people, including 

family members of suicide bombers and prisoners, and how that 

benefits Hamas. 

Mr. Levitt will discuss and opine on the Muslim Brotherhood and 

Hamas in the United States, including organizations which are 

affiliated with the Holy Land Foundation. He will testify as to the 

role of these organizations, including the Islamic Association of 

Palestine, UASR MAYA, ISNA, and others, and how they 

interrelate to each other. Mr. Levitt will testify about non-U.S. 

organizations which are affiliated with Hamas, such as Interpal 

located in the United Kingdom, and how they are related to the 

Holy Land Foundation. 

The expert will also provide an opinion on the importance of 

family members in position of trust in Hamas, and, in conjunction 

with that topic, will identify and discuss family members of the 

defendants and the leadership roles they play in Hamas. Mr. Levitt 

will explain to the jury about the importance of conference and 

fund-raisers which the Holy Land Foundation participated in and 

the means through which funds generated at these events are 

moved to Hamas, as well as how the method of fund-raising and 

the movement of funds evolved in response to law enforcement 

action. 

Mr. Levitt will opine on orphan applications seized from the Holy 

Land Foundation and the significance of the information contained 

within the applications, as it identifies an orphan’s relationship to a 

Hamas member. 

Mr. Levitt will also discuss individuals who were retained by the 

Holy Land Foundation to come to the United States and speak at 

various fund-raisers on their behalf. Mr. Levitt will identify those 

speakers who are affiliated with Hamas. 

Finally, Mr. Levitt will opine on the significance and meaning of 

certain documents taken from the premises of the Holy Land 

Foundation and Infocom, including a security document which 

details covert measures to be taken by Hamas members in 

concealing their activity and any documents they create. 

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Reply to Opposition to Defendants’ 

Motion to Stay Trial 

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Government’s Notice of Expert Witness Testimony, filed May 31, 2005. On July 28, 2006, the 

government filed its Supplemental Notice of Expert Witness Testimony. In pertinent part, the 

Supplemental Notice provided: 

In the original notice of expert witnesses, the government 

identified Matthew A. Levitt as a possible expert in the area of 

Hamas. In addition to the subject matters discussed in the original 

notice, Mr. Levitt will also testify about: the formation and 

structure of Hamas, including its political bureau, military wing 

and social wing; the funding of Hamas, focusing on the social 

wing, including the zakat committees; the relationship between the 

political bureau, military wing and social wing; the relationship 

between Hamas and Fatah; the Oslo Accords and the reaction of 

Hamas; the two Intifadas; Hamas’ tradecraft; Hamas’ charter; 

individuals associated with Hamas; and related matters . Mr. 

Levitt, who is currently a Deputy Assistant Secretary in the Office 

of Intelligence and Analysis at the Department of Treasury, will 

not be issuing an expert witness report, however, much of his 

testimony will be drawn from his book, Hamas - Politics, Charity, 

and Terrorism in the Service of Jihad, Yale University Press 2006. 

 The trial of this matter commenced on September 22, 2008. Government expert Dr. 

Matthew Levitt began testifying that same day and left the stand on Wednesday, September 24, 

2008. Although the government orally notified counsel near the beginning of the trial that Dr. 

Levitt would possibly be returning, it was not until Wednesday, October 8, 2008, that the 

government gave defendants notice that it would seek to present a second round of expert 

testimony by Dr. Levitt on a topic not covered by the two previously-filed government expert 

witness disclosures for Dr. Levitt. Email from Barry Jonas, dated October 8, 2008. The 

government seeks to present a second round of testimony by Dr. Levitt as follows: 

Dr. Levitt will testify about the various forms of contact between 

the defendants and leaders of Hamas, including (but not limited to) 

phone calls, financial transactions, personal meetings, and use as 

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Motion to Exclude Second Testimony 

By Dr. Matthew Levitt 

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overseas speakers. Dr. Levitt will state that, in his opinion, the 

defendants had access to leaders of Hamas that most people do not 

have. 

Id. This Court should preclude this testimony of Dr. Levitt for several reasons. These include 

that (1) the government did not give timely notice to defendants of its intent to present this 

testimony; (2) the proposed testimony by Dr. Levitt is not the proper subject matter of expert 

testimony; and (3) the proposed testimony is duplicative of testimony that has already been 

presented, cumulative, and is intended to give the government a second closing argument. 

II. ARGUMENT

A. Late Disclosure of Subject Matter of Testimony

Rule 16, Federal Rules of Criminal Procedure, states as follows: 

At the defendant’s request, the government must give to the 

defendant a written summary of any testimony that the government 

intends to use under Rules 702, 703, or 705 of the Federal Rules of 

Evidence during its case-in-chief at trial. ...The summary provided 

under this subparagraph must describe the witness’s opinions, the 

bases and reasons for those opinions, and the witness’s 

qualifications. 

Fed.R.Crim.P. 16(a)(1)(G). “It is well-settled that a court may in its discretion preclude expert 

examination pursuant to Rule 16(d)(2)(C) of the Federal Rules of Criminal Procedure regarding 

any topics or opinions not properly disclosed.” United States v. Mahaffy, 2007 WL 1213738, *2 

(E.D.N.Y.), citing United States v. Barile, 286 F.3d 749, 758-59 (4th Cir. 2002). Moreover, 

failure to comply with the Court’s deadlines is a separate and permissible basis for exclusion. Id.

at *3. 

 The government’s notice of the subject matter of the proposed second testimony of Dr. 

Matthew Levitt, was provided to the defense nearly three and a half months after the June 23, 

Case 3:04-cr-00240-P Document 1217 Filed 10/14/08 Page 4 of 10 PageID 18263
Reply to Opposition to Defendants’ 

Motion to Stay Trial 

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2008 deadline for such disclosures, see Order, filed June 11, 2008 (Document 1047), and more 

than two weeks into the current trial. Because the government failed to disclose its intent to 

present Dr. Levitt’s expert testimony that “the defendants had access to leaders of Hamas that 

most people do not have” until the middle of trial, five months after the deadline for such 

disclosures had passed, defendants respectfully request that the Court preclude Dr. Levitt from 

testifying on this subject matter. 

B. The Proposed Testimony of Dr. Levitt is not the Proper Subject of Expert 

Testimony Because it is Within the Common Knowledge of the Jury

 “The court has discretion to exclude expert testimony that will not aid the jury because it 

addresses an issue of which the jury already generally is aware, and it will not contribute to their 

understanding of the particular dispute.” United States v. Angleton, 269 F. Supp. 2d 868 (S.D. 

Tex. 2003) citing United States v. Hall, 165 F.3d 1095, 1104 (7th Cir. 1999) (internal quotations 

omitted); United States v. Mathis, 264 F.3d 321, 340-41 (3d Cir. 2001). Proffered conclusions 

by an expert that are intuitive and within the common knowledge of the jury are not a proper 

subject of expert testimony. Angleton, 269 F. Supp. 2d at 874-77. See also United States v. 

Mejia, 2008 WL 4459289, *9, *12 (2d Cir. 2008). Thus, for example, in Angleton, the district 

court found that testimony that the quality of a voice recording affects the ability of a listener to 

identify the voice was intuitive and within the common knowledge of a jury. Id. at 875. 

Similarly, the district court deemed unnecessary expert testimony that the rate of 

misidentification of a recorded voice goes up when the listener is told in advance who the 

speaker on the recording is believed to be. Id. at 876. 

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Motion to Exclude Second Testimony 

By Dr. Matthew Levitt 

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 In this case, the government seeks to proffer the testimony of Dr. Levitt that “the 

defendants had access to leaders of Hamas that most people do not have.” That “most people” 

do not have access to the leaders of Hamas is a conclusion that is intuitive and well within the 

common knowledge of the jury. Indeed, that “most people” who are not of Palestinian heritage 

do not have access to Palestinians of any political stripe is apparent. Because the ultimate issue 

upon which the government seeks to have Dr. Levitt opine in his second testimony is within the 

ken of the jury, it is not the proper subject matter of expert testimony. 

C. The Proposed Testimony of Dr. Levitt is Duplicative, Cumulative and is Intended to 

Provide the Government with a Second Closing Argument

The government’s October 8, 2008, notice regarding the proffered expert testimony of 

Matthew Levitt states as an initial matter that “Dr. Levitt will testify about the various forms of 

contact between the defendants and leaders of Hamas, including (but not limited to) phone calls, 

financial transactions, personal meetings, and use as overseas speakers.” This proffered 

testimony is patently duplicative of testimony that has already been presented by Agents Burns 

and Miranda. Both Agents Burns and Miranda testified to telephone calls the government 

contends took place between the defendants and persons the government contends are connected 

to Hamas. Both Agents Burns and Miranda testified to financial dealings of some of the 

defendants with these persons and reviewed videos in which such persons are present. 

Moreover, a large proportion of Agent Miranda’s testimony was devoted to a review of the 

names listed on the purported HLF overseas speaker list, HLF Search 87. Indeed, nearly all of 

the trial testimony of the past three weeks has been devoted to elucidating “the various forms of 

contact between the defendants and leaders of Hamas, including (but not limited to) phone calls, 

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Reply to Opposition to Defendants’ 

Motion to Stay Trial 

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financial transactions, personal meetings, and use as overseas speakers.” For the government to 

have its expert Matthew Levitt review with the jury the same evidence that has already been 

presented through Agents Burns and Miranda is cumulative testimony and thus improper. 

With regard to Dr. Levitt’s ultimate conclusion that “the defendants had access to leaders 

of Hamas that most people do not have,” this proffered testimony addressing the implications of 

the government’s evidence regarding the defendants’ associations is manifestly improper. In a 

very recent opinion, the Second Circuit addressed the impropriety of this type of testimony. See 

Mejia, 2008 WL 4459289 at *9, *12 (2d Cir. 2008). In Mejia, the Second Circuit reversed and 

remanded a conviction for having engaged in a conspiracy to commit assaults in aid of 

racketeering activity based upon the impropriety of testimony proffered by a law enforcement 

expert. Id. The Mejia Court noted the dangers of permitting an expert to testify not as to the 

general workings of the type of organization at issue, but rather as to the particular conduct of the 

defendants on trial. The Court noted that in such cases, the witness “transforms into the hub of 

the case, displacing the jury by connecting and combining all other testimony and physical 

evidence into a coherent, discernible, internally consistent picture of the defendant’s guilt.” 

Mejia, 2008 WL 4459289 at *8. The Court acknowledged that “such use of expert testimony 

may have the effect of providing the government with an additional summation by having the 

expert interpret the evidence.” Id. 

The government seeks to have Dr. Levitt engage in a cumulative review of three weeks 

worth of evidence and render an opinion as to the implications of these defendants’ associations. 

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Motion to Exclude Second Testimony 

By Dr. Matthew Levitt 

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Such testimony is improper. Accordingly, defendants respectfully request that this Court 

exclude the proffered expert testimony of Dr. Levitt. 

II. Conclusion and Prayer

 For all the reasons set forth above, defendants respectfully request that this Court 

exclude the proposed second testimony of Dr. Matthew Levitt. 

Respectfully submitted, 

 /s/ Marlo P. Cadeddu 

 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) 

 /s/ Nancy Hollander 

 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 

HOLLANDER GOLDBERG & IVES P.A. 

 20 First Plaza, Suite 700 

 Albuquerque, New Mexico 87102 

 Office: 505.842.9960 

 Fax: 505.842.0697 

 ATTORNEYS FOR DEFENDANTS 

 SHUKRI ABU BAKER (02) 

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Reply to Opposition to Defendants’ 

Motion to Stay Trial 

- 9 -

 /s/ Joshua L. Dratel 

 JOSHUA L. DRATEL 

 New York Bar Card No. 1795954 

AARON J. MYSLIWIEC 

 New York Bar Card No. 4168670 

 Law Office of Joshua L. Dratel 

 2 Wall St., 3rd Floor 

 New York, NY 10005 

 Office: 212.732.0707 

 Email: jdratel@joshuadratel.com 

 ATTORNEYS FOR DEFENDANT 

 MOHAMMAD EL-MEZAIN (03) 

 /s/ Linda Moreno 

 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 

California Bar No. 237759 

JONES DAY 

555 California Street, 26th Floor 

San Francisco, CA 94104-1500 

(415) 626-3939 (Telephone) 

(415) 875-5700 (Facsimile) 

jcline@jonesday.com (Email) 

ATTORNEYS FOR DEFENDANT 

GHASSAN ELASHI (4) 

 

 /s/ Greg Westfall 

 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 

 ATTORNEY FOR DEFENDANT 

 ABDULRAHMAN ODEH (08) 

Case 3:04-cr-00240-P Document 1217 Filed 10/14/08 Page 9 of 10 PageID 18268
Motion to Exclude Second Testimony 

By Dr. Matthew Levitt 

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CERTIFICATE OF SERVICE

 I hereby certify that on October 14, 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/ Marlo P. Cadeddu 

 MARLO P. CADEDDU 

CERTIFICATE OF CONFERENCE

 I hereby certify that on October 14, 2008, I conferred with Mr. James Jacks, attorney for 

the government, who advised that the government is opposed to the motion. 

 /s/ Marlo P. Cadeddu 

 MARLO P. CADEDDU 

Case 3:04-cr-00240-P Document 1217 Filed 10/14/08 Page 10 of 10 PageID 18269