IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA ) CAUSE NO. 3:04-CR-240-P

 (

vs. )

( SEPTEMBER 30, 2008 

) DALLAS, TEXAS 

HOLY LAND FOUNDATION, ET AL ( 9:00 A.M.

______________________________________________________________

VOLUME 11 OF 37

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STATEMENT OF FACTS 

BEFORE THE HONORABLE JORGE A. SOLIS

UNITED STATES DISTRICT JUDGE

and a jury

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A P P E A R A N C E S

 FOR THE GOVERNMENT: UNITED STATES ATTORNEY'S OFFICE

 1100 COMMERCE, 3RD FLOOR 

 DALLAS, TEXAS 75242

 BY: MR. JIM JACKS

 MR. BARRY JONAS

 MS. ELIZABETH SHAPIRO

FOR THE DEFENDANT: FREEDMAN, BOYD, HOLLANDER, 

(SHUKRI ABU BAKER) GOLDBERG & IVES, P.A. 

 20 FIRST PLAZA, SUITE 700 

 ALBUQUERQUE, NEW MEXICO 87102 

 BY: MS. NANCY HOLLANDER

 MS. TERESA DUNCAN

Shawn M. McRoberts, RMR, CRR

Federal Official Court Reporter

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FOR THE DEFENDANT: LAW OFFICE OF JOSHUA L. DRATEL

(MOHAMMAD EL-MEZAIN) 14 WALL STREET, 28TH FLOOR

 NEW YORK, NEW YORK 10005

 BY: MR. JOSHUA DRATEL

 MR. AARON J. MYSLIWIEC

FOR THE DEFENDANT: LAW OFFICE OF MARLO P. CADEDDU

(MUFID ABDULQADER) 3232 McKINNEY AVENUE, SUITE 700

 DALLAS, TEXAS 75204

 BY: MS. MARLO P. CADEDDU

FOR THE DEFENDANT: LAW OFFICE OF LINDA MORENO

(GHASSAN ELASHI) P.O. BOX 10985

 TAMPA, FLORIDA 33679

 BY: MS. LINDA MORENO

 JONES DAY

 555 CALIFORNIA ST., 26TH FLOOR

 SAN FRANCISCO, CA 94104

 BY: MR. JOHN D. CLINE

FOR THE DEFENDANT: WESTFALL, PLATT & CUTRER

(ABDULRAHAM ODEH) ONE SUMMIT AVENUE, SUITE 910

 FORT WORTH, TEXAS 76102

 BY: MR. GREG WESTFALL

COURT'S LAW CLERK: MS. JENNIFER HELMS

 1100 COMMERCE, RM. 1654

 DALLAS, TEXAS 75242

COURT COORDINATOR: MS. BRENDA WEBB

 1100 COMMERCE, RM. 1654

 DALLAS, TEXAS 75242

 OFFICIAL COURT REPORTER: SHAWN M. McROBERTS, RMR, CRR

 1100 COMMERCE STREET, RM. 1654

 DALLAS, TEXAS 75242

 (214) 753-2349

Shawn M. McRoberts, RMR, CRR

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INDEX

Government's Exhibits

Government's Exhibits Page

Secretary of State MS 1 Admitted into Evidence 17

Ashqar Wiretap No. 6, 6-A Admitted into Evidence 18

Shabib Wiretap No. 1, 1-A Admitted into Evidence 23

Shabib Wiretap No. 2, 2-A Admitted into Evidence 27

Ashqar Wiretap No. 3, 3-A Admitted into Evidence 32

Ashqar Wiretap No. 4, 4-A Admitted into Evidence 35

Baker Wiretap 5, 5-A Admitted into Evidence 43

Mushtaha Search No. 1 Admitted into Evidence 51

Illa Falistine No. 1 Admitted into Evidence 63

Illa Falistine No. 3-5 Admitted into Evidence 66

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 THE COURT: Good morning. 

Agent Burns, good morning. I understand you are not 

feeling well.

THE WITNESS: I am feeling better than my baby.

THE COURT: I am sorry to hear that. I got Mr. 

Jacks' email. I don't know whether you shared that with any 

of counsel.

MR. JONAS: We have, and everyone agrees if we could 

go through lunch today that would help out Agent Burns' 

health.

THE COURT: And recess at lunch? 

MR. JONAS: Yes.

THE COURT: Do you think you are going to get into 

those newspaper articles and periodicals this morning? 

MR. JONAS: Mr. Jacks and I went through the 

contested exhibits, and what we decided to do is with the 

newspaper articles -- And I apologize, Your Honor. I left my 

list of the exact exhibit numbers downstairs.

THE COURT: I have that.

MR. JONAS: With the newspaper articles, we are not 

going to use any of them except for that one.

THE COURT: Which is that one? 

MR. JONAS: I want to say it is InfoCom No. 73. For 

some reason that is sticking in my head. I can describe the 

article. What it is is a Dallas Morning News editorial about 

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Mousa Abu Marzook.

THE COURT: And I believe you are right. I think 

that is No. 73. 

MR. JONAS: And the reason why we want to use it, we 

have a phone call with the Defendant Ghassan Elashi and Shukri 

Abu Baker where Ghassan Elashi reads that article to Shukri 

Abu Baker and discusses it. We want to be able to show that 

here is the article, it was found at InfoCom, and this is what 

they are talking about.

THE COURT: That is the one you want to use? 

MR. JONAS: That is the one of the newspaper 

articles. 

The periodical you have, the Al Zatounia and the Illa 

Falistines, we are not going to use the Al Zatounias. The 

Illa Falistines are five issues. 

The first issue, initially we had the full issue in 

Arabic with a few pages translated. What we decided to do is 

exhibit those few Arabic pages that match the English. 

With the other four issues, that is what -- It is a few 

Arabic pages matching the English, and we believe we are 

entitled and should be able to use those Illa Falistines. And 

those I believe I should be able to get to Agent Burns today, 

although given the court schedule I can't say for sure.

THE COURT: And then you are limiting on the 

periodicals the Illa Falistine to -- You want the translations 

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and then the corresponding pages in Arabic? 

MR. JONAS: Correct, sir. 

THE COURT: And then the objection is hearsay, the 

objection from the Defense. And these were not found in 

searches of the Defendants' premises? 

MR. JONAS: That is correct. They were provided by 

a third party.

THE COURT: What is your -- We discussed this a 

little bit yesterday, but refresh my memory.

MR. JONAS: Sure. There are several purposes for 

these magazines. One magazine contains what we call a poem by 

the Defendant Shukri Abu Baker. I understand Ms. Hollander is 

contesting the authorship, but I think that goes to the 

weight. His name is on it. 

Another magazine has an article talking about Hamas, and 

in the body of the article the author encourages the readers 

to donate to the Occupied Land Fund. And although the author 

I believe is unknown, it is still contained in this IAP 

magazine, which is referenced in the Elbarasse documents and 

part of the Palestine Committee's modus operandi.

THE COURT: So you want to get into all five of the 

Illa Falistine periodicals? 

MR. JONAS: Yes, sir.

THE COURT: Ms. Hollander? 

MS. HOLLANDER: Yes, sir. Let me, in addition to 

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the arguments I made before -- 

THE COURT: And I have some of them in writing, and 

you filed those yesterday.

MS. HOLLANDER: Right. I won't repeat those. But 

Your Honor, I think you have now seen them.

THE COURT: I have. 

MS. HOLLANDER: The Government never had the 

originals of these magazines. They only had copies of them, 

although they provided us with what they say is the complete 

magazine. I mean, I have no reason to contest that that may 

or may not be true. 

But they also contain all kinds of additional hearsay; 

for example, circled things on the Arabic. If you look at it, 

things that are written on them, that came from -- These came, 

as I said, from the Boim litigation. We know that is where 

they came from. They are referenced in the deposition. In 

fact, in the deposition parts of it that were not put into 

this case, because the Government decided not to use them. 

That is where they asked Shukri to translate these. So that 

is where they came from. 

They contain -- I mean, everything about them is unknown, 

even the photographs which, for example, depict things in 

Palestine. You can't really see them even in the original. 

They are hearsay upon hearsay upon hearsay, because we don't 

know who wrote the marks on them, we don't know who wrote the 

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articles. They didn't come from any kind of search. They are 

clearly more prejudicial than probative. And the fact that 

some unknown person says donate to Holy Land, the Occupied 

Land Fund, can't be attributed to our client. Anyone can say 

"We are Hamas, and donate to the Red Cross," and you wouldn't 

blame the Red Cross for that. So these should all be excluded 

as hearsay.

The newspaper article, if you want me to address that? 

THE COURT: The one that -- He has dropped two of 

them. 

MS. HOLLANDER: It is an editorial, I believe.

THE COURT: And I have read it.

MS. HOLLANDER: You did read it?

THE COURT: Yes. 

MS. HOLLANDER: It is an editorial. It has 

information in it way beyond anything that this jury should 

see on the basis of 403. It talks about, for example, that 

the FBI says they are cells of Hamas operating in north Texas. 

What could be more prejudicial and have no probative value 

than that in the editorial, some editorial person stating his 

opinion. It simply should not come in.

THE COURT: Okay. 

MR. JONAS: Your Honor, the Defendant Ghassan Elashi 

reads that line on the phone to the Defendant Shukri Baker and 

comments on it. It is going to get before this jury. It 

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comes out of his mouth, so I don't think there is really any 

prejudice to show the article to the jury and say this is what 

they are talking about that was found at InfoCom. It is not 

like we are offering it independent of anything to prove the 

truth of what is in the article with regard to that issue.

To get back to the Illa Falistine for a moment, as far as 

the marks go that is on the Arabic version. The circles and 

if there is any writing on it, we didn't translate that 

writing. If there is any concern about any extraneous 

remarks, we can white those out and make a fresh copy. 

As far as the authorship of the article at issue, it is 

not just someone random that has something to do with the HLF. 

This is someone who is writing an article in the IAP magazine, 

which the Defendant acknowledged he was a member of their 

advisory board. And as we have seen for the past several days 

of Agent Burns' testimony, there is an intimate relationship 

between the IAP and the HLF as part of this Palestine 

Committee. So this is just not some person who has nothing to 

do with these Defendants writing an article. I think clearly 

it is a co-conspirator statement in furtherance.

THE COURT: Ms. Moreno?

MS. MORENO: Just briefly, on the editorial, not 

addressing the periodicals. I would suggest if the Court is 

inclined to let this in, I would ask for a redaction, then. 

If the Government wants to focus on a particular sentence they 

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claim my client read, and I don't have the FISA before me so I 

don't know which sentence it is, then I would suggest that all 

the rest of it is not necessary before the jury because it is 

infused with opinion and lots of extraneous evidence that this 

jury should not hear. It talks about the Oklahoma City 

bombing. It is very, very prejudicial.

We could redact it except for that particular line. Or 

Your Honor, I would suggest a stipulation in the same way that 

we stipulated yesterday that there was a piece in the Dallas

Morning News that was referred to by Mr. Elashi and Mr. Baker 

with this particular sentence, and get rid of all this 

extraneous, prejudicial, opinionated evidence that the jury 

should not hear.

MS. CADEDDU: May I just make one point, Your Honor? 

THE COURT: Yes.

MS. CADEDDU: As far as the Illa Falistine, I mean, 

I think under Rule 1003, if there is some question raised 

about the admissibility of a duplicate, then it shouldn't be 

admitted. So I think the authenticity is in question because 

of the source of it. We don't know where it came from, who 

provided it, or what they did to it before they provided it. 

No. 2, as far as the newspaper article, I understand Mr. 

Jonas to be -- I guess he is introducing that as tending to 

show state of mind again. And as far -- Insofar as any 

evidence admitted that tends to show state of mind, I would 

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again request a limiting instruction that it applies only to 

those to whom it could change their state of mind.

THE COURT: Thank you. 

MR. JONAS: Do I need to respond?

THE COURT: Yes. Respond. What about that -- Ms. 

Moreno addressed the newspaper article. Are you seeking 

admission of all of it? 

MR. JONAS: Yes, sir. Mr. Elashi read more than one 

line. I don't think it makes any sense, frankly, to cut it 

up. It takes completely out of context, and I think it is 

proper to go in by itself in total.

THE COURT: Are you going to play that conversation 

first before you -- 

MR. JONAS: Yes, sir.

THE COURT: Let me listen to the conversation. I 

have not heard the conversation. And I understand that is 

really your link to seeking admissibility. There may be some 

other bases, but primarily that is the link is the 

conversation. So let me listen to that, and then you can 

offer it. And if we need to approach the bench we can have a 

bench conference, but I should be able to make a ruling at the 

time.

With respect to the periodicals, I do have some concerns. 

Are these markings that you put on them? That is the way you 

received them? 

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MR. JONAS: That is the way I received them.

THE COURT: Then I think probably they should be 

redacted. There is no reason for extraneous markings other 

than what is on the periodicals. I think they are 

self-authenticated under Rule 902, as we discussed yesterday. 

And of course, there has been a lot of testimony about the 

link, purported link between the IAP and the Holy Land 

Foundation, and then the references in here. 

I think it is relevant and it is admissible to show state 

of mind, knowledge, intent. And so I will overrule the 

objections with respect to the Illa Falistine periodicals No. 

1 through 5, with the exception of any extraneous markings. 

Make sure they are redacted.

MR. JONAS: Yes, sir. And just so we are clear, I 

may get to those before we have a chance to redact them. We 

will certainly redact them as soon as we have the opportunity.

THE COURT: Before they get back to the jury. 

And I will withhold ruling on the newspaper until I hear 

the conversation.

What about Ms. Cadeddu's request for a limiting 

instruction? 

MR. JONAS: Sir, I am not sure if that is 

appropriate. Again, this ties directly into the call, the 

call of two co-conspirators, it is all in furtherance of the 

conspiracy. 

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THE COURT: When is the telephone conversation? 

MR. JONAS: When did it take place? 

THE COURT: Yes.

MR. JONAS: It was in the late '90s. It had to be 

in '95, '96 because Marzook -- 

THE COURT: Because he was in custody? 

MR. JONAS: Yes.

THE COURT: So you are opposed to that any limiting 

instruction? 

MR. JONAS: Yes, sir.

THE COURT: Okay. I will deny that at this time. I 

am still grappling with the issue of which conversations need 

to be limited and which do not. We will need to address that 

I think more fully.

MS. CADEDDU: Yes, sir. And I want to make it 

clear, it is not just conversations. The Government is 

offering a lot of documents for state of mind, so it would 

include those as well.

THE COURT: All right. We will deal with all of 

those later, then. 

Anything else before we bring in the jury? 

MR. JONAS: No, sir. Just one questioning of 

scheduling, since you have allowed us, and we do appreciate 

the break at lunch today. We received last night the list of 

exhibits that the Defense plans on showing Agent Burns. If 

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the Court wishes, we could take up our objections to those 

this afternoon.

THE COURT: That would be good. I have not had a 

chance to look at those. We will come back -- We will discuss 

that at the break. Do I have a list of those? Have you 

provided us a list of that? 

MR. MYSLIWIEC: I didn't copy you on that.

THE COURT: If you will get me a copy of that, and 

then we will take a long lunch break and come back take up 

those objections sometime this afternoon.

MR. JONAS: Thank you, sir.

THE COURT: Anything from the Defense before we 

bring the jury in? 

Go ahead and bring the jury in. 

MR. JONAS: One other thing. There are two exhibits 

that support some of the schedules I offered in evidence that 

I forgot to offer in.

THE COURT: Two exhibits -- I didn't catch the 

second part.

MR. JONAS: Of all the summary schedules I offered 

yesterday, I missed two supporting exhibits, so I will start 

off with those.

THE COURT: Sure. 

MR. JONAS: And I am going to have to do it after 

the break because, again, I left my list of exhibits 

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downstairs. I apologize. 

(Whereupon, the jury entered the courtroom.)

THE COURT: Ladies and gentlemen of the jury, good 

morning. We are ready to proceed.

Mr. Jonas? 

MR. JONAS: Thank you, sir.

Q. (BY MR. JONAS) Agent Burns, I know when we broke 

yesterday I said we were moving on from the Philadelphia 

conference, but there are two questions I forgot to ask, and I 

apologize. 

The first is you testified yesterday in response to the 

quote from the Defendant Shukri Abu Baker "In the past we gave 

the Islamists $100,000 and we gave $5,000 to the others" as an 

example of the Holy Land Foundation giving $5,000 to Oklahoma 

City bombing victims. Did they give more than just $5,000? 

A. Yes, they did. I think they had a blood drive and there 

were certain expenses associated with them traveling up to 

Oklahoma City to, you know, administer relief. But in general 

it was, you know, the $5,000 donation plus those expenses.

Q. Okay. You testified during the Philadelphia meeting that 

several of the participants discussed their approach to 

America and what they can say to the Americans. Do you recall 

that?

A. I do.

Q. Were there several times they discussed it that we didn't 

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play yesterday or read yesterday?

A. Yes.

Q. Okay. 

MR. JONAS: Let's play one more, Philly Meeting No. 

15-E, Segment A, please.

Q. (BY MR. JONAS) Can you remind us who is speaking?

A. This is Omar Ahmad.

Q. Agent Burns, do you see where it says "if the Fund"? Who 

is the fund that?

A. Is the HLF.

Q. Now we will move away from the Philadelphia meeting. 

After the Philadelphia meeting, did there come a time 

when an issue arose involving the Holy Land Foundation that 

required the intervention of the Palestine Committee? 

A. Yes.

Q. What was this issue?

A. There was a conflict that arose shortly after the 

Philadelphia meeting between Abdel Haleem Ashqar and his 

association, the Al-Aqsa Educational Fund and the officers of 

the HLF.

Q. You basing that upon what?

A. That is based upon the exhibits that we are about to show 

to the jury.

Q. Okay. You testified that Ashqar had an organization 

called the Al-Aqsa Educational Fund?

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A. That is correct.

Q. Do you have before you what has been marked as Secretary 

of State MS-1?

A. I do.

Q. Okay. What is that document?

A. These are the articles of incorporation for the Al-Aqsa 

Educational Fund from the State of Mississippi.

Q. Is that certified?

A. It is.

MR. JONAS: Your Honor, at this time I offer into 

evidence Government's Exhibit Secretary of State MS-1. 

MS. HOLLANDER: No objection, Your Honor.

THE COURT: Admitted. 

Q. (BY MR. JONAS) Agent Burns, the MS in the exhibit number 

stands for what?

A. The State of Mississippi.

Q. Agent Burns, do you see the page that is on the screen?

A. I do.

Q. Is that the page that identifies Ashqar as being 

associated with this Al-Aqsa Educational Fund?

A. Yes. If you will look toward the bottom, his name is 

listed twice there at the bottom. It is hard to read on the 

screen with the small print.

Q. And on the top what does it say? Does it identify the 

fund?

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A. Yes. At the top it states that these are the articles of 

incorporation for the Al-Aqsa Educational Fund.

Q. Based upon these articles of incorporation, what was the 

Al-Aqsa Educational Fund supposed to be?

A. It was a charitable organization.

Q. Now, you discussed that there was an issue between the 

Al-Aqsa Educational Fund and the Holy Land Foundation. Was 

there any calls that were intercepted by the FBI where these 

issues were discussed by the Defendants or any other 

participants in the Palestine Committee?

A. There were several.

Q. Do you have what has been marked as Ashqar Wiretap No. 6 

before you?

A. I do.

Q. Is that one of the calls you are referring to?

A. It is.

Q. What is the date of the call?

A. February 23rd, 1994.

Q. And who are the participants?

A. Abdel Haleem Ashqar and Muin Shabib.

MR. JONAS: Your Honor, at this time I would offer 

into evidence Government's Exhibit Ashqar No. 6 and 6-A. 

MS. HOLLANDER: Nothing additional, Your Honor. 

THE COURT: Admitted. 

MR. JONAS: If we can play that call, please.

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(Whereupon, Ashqar Wiretap No. 6 was played, while 

questions were propounded.)

Q. (BY MR. JONAS) Okay. Agent Burns, who is AB?

A. That is Abdel Haleem Ashqar.

Q. Who is MU?

A. That is Muin Shabib.

Q. Was Muin Shabib also at the Philadelphia meeting?

A. Yes.

Q. As well as Ashqar?

A. Yes. 

Q. You see he refers to Sheikh Jamil? 

A. Yes.

Q. Do they identify who that is in the course of the 

conversation?

A. Yes.

Q. Who is that?

A. That is Sheikh Jamil Hamami, the Hamas leader from the 

West Bank.

Q. And if I can hold up Demonstrative No. 17, is he 

somewhere on this chart?

A. On the bottom row, second from you.

Q. Do you see where I am pointing?

A. Yes, that is him. 

Q. Agent Burns, do you see where it says, "My man, the 

Sheikh's trip must be transferred into the Fund"?

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A. Yes.

Q. The Fund you testified was used to respect the Holy Land 

Foundation. 

A. That is correct.

Q. But we see you just talked about the Al-Aqsa Educational 

Fund. In the context of this call, as well as calls we are 

about to play, are you able to determine which fund they are 

talking about here?

A. Yes.

Q. Which one?

A. The Holy Land Foundation. In this instance they are 

speaking about, and we will see as the call plays on, as well 

as the next call, that Sheikh Jamil Hamami was initially 

brought to the United States to do fundraising for the Al-Aqsa 

Educational Fund, and that is the problem. The Holy Land 

Foundation wanted him to raise money for them, not the Al-Aqsa 

Educational Fund.

Q. And that is all in this call and the next one?

A. That is exactly what is going to be discussed.

Q. Okay. Agent Burns, do you see the name Ismail Elbarasse 

that Mr. Muin Shabib is referring to? 

A. I do.

Q. Is that the same Ismail Elbarasse who you have testified 

about the Elbarasse documents came from a search warrant of 

his home?

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A. That is correct. A member of the Palestinian Committee.

Q. Did you see a few moments ago that Muin Shabib was 

referring to a Shukri?

A. Yes.

Q. Are there any other Shukris involved in the Holy Land 

Foundation other than the Shukri Abu Baker?

A. No. That would be the Defendant Shukri Abu Baker. 

Q. Agent Burns, they refer a few times to Aboul Hasan, have 

we seen his name before?

A. Yes. That is the nickname for Abdel Haleem Ashqar. 

Q. Agent Burns, do you see where it says Abou Hamzah?

A. Yes.

Q. Do you know who that is?

A. That is the nickname for Jamil Hamami, the Hamas leader. 

Q. Agent Burns, do you see a discussion about voting?

A. Yes.

Q. Will it become clear in the next call what they are 

referring to, or the call after that, as to voting?

A. Yes. 

Q. Agent Burns, could you remind us, what was the date of 

this call?

A. February 23rd, 1994.

Q. Are you aware there has been discussion about Jamil 

Hamami leaving Hamas at some point?

A. Yes.

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Q. You are aware of that? Was this call before or after he 

left Hamas?

A. Before he left Hamas.

Q. Again, Aboul Hasan is?

A. Abdel Haleem Ashqar.

Q. And we saw another Abou name a moment ago, a couple of 

lines earlier. I should have asked that?

A. Abou Hamzah is Sheikh Jamil Hamami.

Q. Agent Burns, do you see where it says, "This is a 

committee's decision"?

A. Yes.

Q. Based upon the calls we are going to be playing on this 

issue this morning, is it clear which committee is being 

referred to?

A. It does.

Q. And which committee is that?

A. The Palestine Committee. 

Q. Agent Burns, they refer to the Defendant Shukri Abu 

Baker. Is there another call where the Defendant Mohammad 

El-Mezain is briefed on the issue, for lack are of a better 

term?

A. Yes.

Q. Do you have before you what has been marked as Shabib 

Wiretap No. 1?

A. I do.

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Q. What is the date of that call?

A. The front of the transcript, it just says 1993.

Q. So we don't know for sure of the date?

A. We don't.

Q. Are you able to approximate the date based upon what is 

going on in the call we just placed and the call we are going 

to play after this one?

A. You can tell from the content of the call that it is 

happening around the same time.

Q. Which is when again?

A. That was February 23rd, 1994.

Q. Okay. So the 1993 on the front of the transcript is 

inaccurate?

A. It could have been late '93, but most likely it was early 

1994.

Q. Who were the participants in this call?

A. Mohammad El-Mezain and Muin Shabib.

MR. JONAS: Your Honor, at this time I would offer 

into evidence Shabib Wiretap No. 1 and 1-A. 

THE COURT: Admitted. 

MS. HOLLANDER: No additional objections. 

Would you show the first page with the date on it? 

MR. JONAS: Sure. If we can put that on the screen, 

the first page. If you can enlarge the top half, please.

Okay. If you will play that call.

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(Whereupon, Shabib Wiretap No. 1 was played, while 

questions were propounded.)

Q. (BY MR. JONAS) Agent Burns, who is MU who is the first 

person speaking?

A. That is Muin Shabib.

Q. And who is MO?

A. The Defendant Mohammad El-Mezain.

Q. And is this the whole call, or is this just a portion of 

the call?

A. A portion.

Q. Agent Burns, who is Abu Ibrahim?

A. That is the Defendant Mohammad El-Mezain. 

Q. Agent Burns, do you see where it says, "Leave it to the 

Foundation"?

A. Yes.

Q. In the context of this call, are you able to determine if 

they are talking about the Holy Land Foundation or the Al-Aqsa 

Educational Foundation?

A. They are talking about the Holy Land Foundation.

Q. Okay. Do you see where it says, "And he's allowed to 

bring a spokesman once a year to advertise for his 

organization and that's it"?

A. Yes.

Q. Does that relate to what is going on, this issue you 

described earlier, this conflict between the Al-Aqsa 

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Educational Fund and the Holy Land Foundation?

A. It does.

Q. Will that become clear in the next call?

A. Yes.

Q. Okay. Agent Burns, after this, was there a phone call 

where several members of the Palestine Committee got together 

to resolve this issue? 

A. Yes.

Q. And was that phone call recorded by the FBI?

A. It was.

Q. Do you have before you what has been marked as Shabib 

Wiretap No. 2?

A. I do.

Q. What is the date of that call?

A. February 23rd, 1994.

Q. Who are the participants?

A. Muin Shabib, Ismail Elbarasse, Omar Yehia also known as 

Omar Ahmad, Osama Ahmad, Shukri Abu Baker, and at one point 

Hamas leadership Jamil Hamami beeps in but he is not actually 

a participant in the conference call they are having.

Q. Are these individuals, are they all named in Elbarasse 

Search No. 10 as members of the Palestine Committee?

A. I believe they are. I would have to check on Osama Ahmad 

but if you will give me a second I can check on that. 

MR. JONAS: If we can put Elbarasse Search No. 10 on 

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the screen, please, page 3, I believe.

The next page.

Q. (BY MR. JONAS) Agent Burns, do you have that before you?

A. I do.

Q. Can you tell us which side of the page you see these 

names?

A. Elbarasse is on the right, No. 3. 

Q. Are these names in this document multiple times, or this 

page?

A. Yes.

Q. So we will just use the list on the right. 

A. Okay.

Q. Just for now. 

A. Again, we identified Ismail Elbarasse. Omar Ahmad is 

No. 13, omar Yehia. Shukri Abu Baker is No. 11. Jamil Hamami 

is not on the list because he is from overseas. Muin Shabib 

is not on the list. We heard him discussed in the calls 

yesterday, but he is not on that list. And I don't see Osama 

Ahmad, but let me check one thing. Yes, I don't see Osama's 

name either.

Q. You said Muin Shabib is not on this list, but was he at 

the Philadelphia meeting?

A. He was, as was Osama.

MR. JONAS: Did I offer this into evidence, Your 

Honor, Shabib Wiretap No. 2?

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THE COURT: You have not.

MR. JONAS: I offer No. 2 and 2-A.

THE COURT: That is admitted. 

MR. JONAS: If we can play that call.

Q. (BY MR. JONAS) To orientate who the speakers are, who is 

OM?

A. That is Omar Ahmad.

Q. Is this call segmented out, Agent Burns?

A. It is.

Q. Agent Burns, did the Holy Land Foundation, was it part of 

the practice in raising funds to bring in speakers from 

overseas, outside the United States, to come to the United 

States and raise funds on their behalf?

A. Yes. That was a practice they had.

Q. Is that something that is going to be discussed in this 

case later on?

A. It is.

Q. Okay. And we saw the name Haitham on that last call, and 

it referred to Haitham following Sheikh Jamil a day or week 

after. Who is Haitham?

A. Haitham is Haitham Maghawri, the individual who attended 

the Philadelphia meeting. We saw a picture of him yesterday.

Q. And OM on this attribution, again, is that Omar Ahmad?

A. It is.

Q. Okay. Would you remind us who Abdel Hassan is? 

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A. Abdel Haleem Ashqar.

Q. The head of the Al-Aqsa Educational Fund?

A. That is correct.

Q. Who is IS that is speaking?

A. That is Ismail Elbarasse.

Q. Okay. Who is OS? 

A. That is Osama.

Q. Osama?

A. Ahmad.

Q. Who is MU that is speaking now?

A. That is Muin Shabib.

Q. This Shukri and Abu Ibrahim, who are they?

A. The Defendant Shukri Abu Baker and Mohammed El-Mezain.

Q. Do you see where it says Aboul Hasan said, or there is a 

quote -- And Aboul Hasan is Ashqar. Is that correct?

A. That is correct.

Q. "Even if you decide to dissolve the Fund, I would still 

ignore it." Which fund is Ashqar talking about?

A. The Al-Aqsa Educational Fund.

Q. That is part of the fund he was with?

A. That is correct.

Q. Per the Secretary of State of Mississippi record we 

looked at?

A. That is correct.

Q. Do you see where it says Abdel Haleem? Do you know who 

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that is?

A. That is Abdel Haleem Ashqar.

Q. So they are using Aboul Hasan and Abdel Haleem. They are 

using two different names to call the same person?

A. Yes. They are speaking about the same person here using 

his nickname and his first and middle name. 

Q. Do you see the term fund?

A. Yes.

Q. Which fund are they talking about?

A. In this instance they are saying, "We will leave that 

opportunity to the Fund," being the Holy Land Foundation.

Q. Okay. 

MR. JONAS: One moment, Your Honor. 

THE COURT: Yes. 

Q. (BY MR. JONAS) Who is SH?

A. That is Shukri Abu Baker the Defendant.

Q. Who is IS?

A. That is Ismail Elbarasse. 

Q. Who is Abou Mohamed that is referred to by Muin Shabib?

A. He is greeting Shukri Abu Baker who joined the call. 

That is his nickname.

Q. That is whose nickname?

A. Shukri Baker's. 

Q. Agent Burns, do you see where Omar Ahmad is referring to 

a meeting that says "We all met in November"?

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A. Yes.

Q. And was this meeting referred to several times throughout 

the conversation?

A. Yes.

Q. Did the FBI record that meeting in November?

A. No. 

Q. Do you see, Agent Burns, where it is referring to the 

Society of Sciences?

A. Yes.

Q. Are you aware what that is?

A. Yes.

Q. What is that?

A. Jamil Hamami was part of the Islamic Science and Culture 

Committee in Jerusalem. That is what he is referring to, 

whether he is going to raise money for the Al-Aqsa Educational 

Fund. 

Q. Is the Islamic Society of Science something we are going 

to discuss later on in this case?

A. Yes, it is.

Q. Was there a connection between that organization and the 

Holy Land Foundation?

A. Yes, there is.

Q. We will get to it later?

A. Yes.

Q. Okay. Agent Burns, do you see where it says "...handed 

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over to the committee, our committee"? 

A. Yes.

Q. What committee are all these individuals part of?

A. The Palestine Committee.

Q. In the course of reviewing all the material reviewed by 

the FBI, have you seen these individuals associated in any 

other way, other than the Palestine Committee, as per the 

Elbarasse documents we looked at?

A. Through the Palestinian Committee and its organizations.

Q. That is the only way that they were connected?

A. Yes. 

Q. Agent Burns, who is brother Abou Mohamed?

A. He is talking about Muin Shabib there. 

Q. Again, Agent Burns, brother Aboul Hasan?

A. That is Abdel Haleem Ashqar.

Q. And Agent Burns, just so we are clear, on the first page 

of the transcript it has the names of the participants. Is 

that correct?

A. Correct.

Q. And it has their Abu names as well?

A. I believe it does on this one. Yes, it does. 

Q. Agent Burns, did the decision of the Palestine Committee 

that the money raised by Sheikh Jamil Hamami should go to the 

Holy Land Foundation, did this particular meeting end the 

dispute?

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A. It did not end the dispute.

Q. The dispute continued?

A. It did.

Q. Are was there another call discussing the dispute?

A. Yes.

Q. Do you have before you what is marked as Ashqar Wiretap 

No. 3?

A. I do.

Q. What is the date of this call?

A. March 1st, 1994.

Q. And who are the participants?

A. Abdel Haleem Ashqar and an individual identified as Abou 

Ahmad.

Q. Do you know who Abou Ahmad is?

A. I do not know.

Q. Do they discuss this issue?

A. They do.

MR. JONAS: Your Honor, At this time I offer into 

evidence Government's Exhibit Ashqar Wiretap No. 3 and 3-A. 

MS. HOLLANDER: Nothing additional.

THE COURT: Those are admitted. 

MR. JONAS: If we can play that call, please.

(Whereupon, Ashqar Wiretap No. 3 was played, while 

questions were propounded.)

Q. (BY MR. JONAS) Agent Burns, who is AB that is speaking?

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A. That is Abou Ahmad.

Q. And who is AS?

A. Abdel Haleem Ashqar.

Q. The person with the Al-Aqsa Educational Fund?

A. That is correct.

Q. Who is Abu Omar?

A. That is Hamas leader Mousa Abu Marzook. 

Q. Do you see the Issam Al-Sarraj?

A. I do.

Q. Do you know who that is?

A. That is one of the individuals who was invited to attend 

the Philadelphia meeting.

Q. Do you know if he attended?

A. I was not able to confirm that one way or the other.

Q. Is he part of the Palestine Committee, per the Elbarasse 

documents we looked at?

A. Can I check Elbarasse No. 10 to be sure? 

Q. Go ahead. 

A. He is. He is No. 21 on the list.

Q. Agent Burns, did the letter from Hamas leader Marzook to 

Ashqar, did that end this dispute between the Al-Aqsa 

Educational Fund and the Holy Land Foundation?

A. No, it didn't.

Q. What happened next?

A. Two Hamas leaders attended or went to Abdel Haleem 

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Ashqar's home and informed him of what he needed to do.

Q. Was this -- This was in person?

A. It was.

Q. Was this meeting in person recorded by the FBI?

A. Yes, it was.

Q. All right. Do you have before you what has been marked 

as Ashqar Wiretap No. 4?

A. I do.

Q. And I guess just to be clear, all the other wiretaps we 

discussed were phone conversations that were intercepted. 

Correct?

A. Except for the Philadelphia meeting.

Q. This one is an actual in-person meeting?

A. At Ashqar's home. Correct.

Q. And also so we are clear, you have identified Ashqar 

documents that we have called Ashqar Search. Are those 

documents that came from the same home where this meeting was 

recorded?

A. Yes.

Q. It is the same Ashqar?

A. It is.

Q. Okay. What is the date of this meeting that is in Ashqar 

Wiretap No. 4?

A. March 14th, 1994.

MR. JONAS: Your Honor, at this time I would offer 

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into evidence Ashqar Wiretap No. 4 and 4-A. 

MS. HOLLANDER: Nothing additional, Your Honor.

THE COURT: And those exhibits are admitted. 

MR. JONAS: Agent Burns, per the recording, who are 

the Hamas leaders that went down to see Ashqar on this issue.

A. Mohamed Siam and Jamil Hamami.

Q. And for the record I am going to hold up Demonstrative 

No. 17, hamas leaders in the '90s. Agent Burns, are they on 

this chart?

A. They are.

Q. Can you point where they are at?

A. Mohammed Siam is on the second row, the fartherest from 

you.

Q. On the end?

A. That is correct. And Jamil Hamami is on the bottom row, 

second from you. That is correct.

Q. And that is the same Jamil Hamami whose fundraising 

activity in the United States is THE subject of this 

controversy?

A. That is correct.

Q. Okay. 

MR. JONAS: Can we play Ashqar Wiretap No. 4, 

please? 

(Whereupon, Ashqar Wiretap No. 4 was played, while 

questions were propounded.)

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Q. (BY MR. JONAS) Agent Burns, who is the AB?

A. That is Abdel Haleem Ashqar.

Q. Are we playing the whole meeting?

A. No, just portions of it. It was quite lengthy.

Q. Okay. Agent Burns, who is Abu Ibrahim that is referred 

to? 

A. The Defendant Mohammad El-Mezain.

Q. Okay. Agent Burns, who is MO? 

A. This is Hamas leader Mohamed Siam.

Q. And who is JA that is coming up?

A. That is Hamas leader Jamil Hamami.

Q. Who is AB again?

A. That is Abdel Haleem Ashqar.

Q. Do you see where it says Ashqar is quoting, and Omar, it 

says, "as long as I am president of the Association."

A. Yes.

Q. What is the Association?

A. The Islamic Association for Palestine, the IAP.

Q. And who is the Omar that is president of the IAP?

A. Omar Ahmad.

Q. At that time he was president?

A. At that time.

Q. That was the same Omar Ahmad that we have been 

discussing?

A. That is correct.

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Q. Okay. Do you see where it says Om Omar? 

A. I do.

Q. Do you know who that is?

A. That would be the wife of Mousa Abu Marzook. Om means 

mother of. So Marzook's nickname is Abu Omar, father of Omar. 

Om Omar would be mother of Omar.

Q. And her other name is Nadia Elashi? 

A. Her name is Nadia Elashi.

Q. Have we seen her name Nadia Elashi in this case before?

A. We have. The HLF wrote checks to her from those early 

bank records.

Q. Agent Burns, do you know who Abou Hemmam is?

A. In this context I cannot say with 100 percent certainty.

Q. Who is Abu Omar?

A. That is Mousa Abu Marzook. 

Q. Do you see where it said brother "a Abou Mohamed, meeting 

Omar"?

A. Yes.

Q. Who is that?

A. That is Omar Ahmad. 

Q. Agent Burns, in this meeting with Hamas leaders Sheikh 

Jamil Hamami and Mohamed Siam with Ashqar, did that 

effectively end this dispute? 

A. Shortly thereafter the dispute resolved.

Q. Was it resolved the way the Palestine Committee directed 

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it to be resolved?

A. Yes.

Q. Okay. Agent Burns, did the Palestine Committee continue 

to have involvement with the actions and the activities of the 

Holy Land Foundation?

A. It did.

Q. Do you have before you what has been marked as Baker 

Wiretap No. 33?

A. I do.

Q. And is that a call?

A. It is.

Q. Who are the participants?

A. Omar Yehia also known as Omar Ahmad of the IAP, and 

Haitham Maghawri.

Q. Haitham Maghawri is who again?

A. One of the HLF officers who attended the Philadelphia 

meeting.

Q. What is the date of this call?

A. November 29, 1999. 

MR. JONAS: Can we put the second page on the 

screen, please?

Q. (BY MR. JONAS) Agent Burns, are you up to doing a little 

back and forth reading with me?

A. I can handle that.

Q. Okay. Which role do you want to be?

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A. I will be Omar.

Q. Okay. 

MR. JONAS: If we can enlarge the top half. 

THE WITNESS: "May God bless you. Also Shukri had 

promised me to support the Lebanese project with 50,000."

Q. (BY MR. JONAS) Haitham: "By God, you're 

problem-makers."

MS. MORENO: I am so sorry to interrupt. I 

apologize. Is this in evidence? 

MR. JONAS: I am sorry, Your Honor. I forgot to do 

that. I will offer Baker Wiretap No. 33 and 33-A into 

evidence. 

Thank you, Ms. Moreno.

MS. HOLLANDER: No further objections. 

THE COURT: That is admitted. 

MR. JONAS: If we can bring it back up on the 

screen.

Q. (BY MR. JONAS) Okay. 

A. Do you want me to start over? 

Q. Sure. 

A. Okay. "May God bless you. Also Shukri had promised me 

to support the Lebanese project with 50,000."

Q. "By God, you're problem-makers."

A. "Did he tell you?"

Q. Haitham: "He told me."

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A. "Okay. Go ahead and send it.

Q. Haitham: "But, by God, this is not a good business."

A. "Why?" 

Q. Haitham: "I don't know. I don't know."

A. "Why?"

Q. Haitham: "I mean, out of nothing someone comes and takes 

50, and we don't give anything to those who have been lined up 

for a year and haven't gotten a cent. I mean, by God, it is 

not fair. I mean, by God, it is not fair. Believe me, there 

are projects, by Almighty God, we don't know."

Agent Burns, before you read the next line, there are 

several words that are in Italics. Do you know why that is?

A. Because they are spoken in English as opposed to Arabic, 

which a majority of the conversation was actually spoken in 

Arabic.

Q. Okay. Continue on. 

A. "Omar Ahmad says, "These people, before you start crying, 

they took it. These people have money allotted to them, man."

Q. Haitham: "Where is this money which is allotted to them? 

Tell me."

A. "Come on."

Q. Haitham: "Where? Where Abou Mohamed. By God, I mean, 

where is this money which is allotted to them? By God, there 

is not. I mean, believe me, I am ready now."

A. "You know how I told you about that. I will not be able 

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to tell you right now."

Q. Haitham: "My brother, believe me, there is not. I'm 

telling you, believe me, there is not."

A. "You're just making a big deal, man. Forget it."

Q. Haitham: "What big deal?"

A. "That one."

Q. Haitham: "Okay." 

A. Omar Ahmad says, "These people got their money. They 

took money and that's why they're not asking. These people, 

because they say that it is for us, that is, fine, fine."

Q. Haitham: "God's willing, it will be good."

A. "Don't get upset over it. Don't...don't think of it that 

way. Think of it in a different way. I even don't know these 

people. I don't even know them."

Q. Haitham: "I don't know. I don't know, by God."

A. "It will be good."

Q. Haitham: "God's willing, it will be good. Okay, Haij."

A. "May God bless you."

Q. Haitham: "May God bless you, Abou Mohamed. Peace be 

with you."

A. "Peace and God's mercy."

Q. Agent Burns, tell us again, what is the date of this 

call?

A. This was November 29th, 1999.

Q. Was this after Hamas was designated as a terrorist 

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organization?

A. Yes; several years.

Q. And Omar Ahmad, when he is saying that "Shukri promised 

me to support the Lebanese project with 50,000," at this point 

in 1999 what was his role with the Holy Land Foundation?

A. Other than being a part of the Palestinian Committee, he 

had no role with the Holy Land Foundation.

Q. He wasn't an employee?

A. No, he was not.

Q. Was he an officer?

A. No, he was not.

Q. A director?

A. No, he was not.

Q. Any other calls where Omar Ahmad is directing Holy Land 

Foundation business?

A. Yes.

Q. Do you have before you what has been marked as Baker 

Wiretap No. 5?

A. I do.

Q. And what is the date of that call?

A. May 25th, 1999.

Q. Who are the participants?

A. Omar Yehia also known as Omar Ahmad, and the Defendant 

Shukri Abu Baker. 

MR. JONAS: At this time, Your Honor, I would offer 

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into evidence Baker Wiretap No. 5 and 5-A. 

THE COURT: Those are admitted. 

MR. JONAS: If we can play that call.

(Whereupon, Baker Wiretap No. 5 was played, while 

questions were propounded.)

Q. (BY MR. JONAS) Who is SH?

A. That is the Defendant Shukri Abu Baker.

Q. And who is OM?

A. That is Omar Ahmad.

Q. Okay. Do you see where Shukri Baker says, "The man made 

17 to 20 trips maximum"? 

A. Yes.

Q. During the course of the call, will it become clear who 

he is referring to as "the man"?

A. It will.

Q. And who is that?

A. That is the Defendant Mohammad El-Mezain.

Q. Okay. And it says he made 17 to 20 trips. Besides being 

an officer and a director of the Holy Land Foundation, what 

did the evidence show Mohammad El-Mezain do for them?

A. He was also a fundraiser who traveled around the country 

to various events and raised money for the HLF. 

Q. Agent Burns, the Defendant Shukri Baker refers to 

Ghassan. What Ghassans were there associated with the Holy 

Land Foundation?

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A. He is referring to the Defendant Ghassan Elashi.

Q. Okay. Agent Burns, who is Akram? 

A. That is one of the HLF officers at the time Akram Mishal. 

Q. Do you know -- It says Abdel Jabbar. Do you know who 

that is?

A. Yes. There was a fundraiser for the HLF from southern 

California named Abdel Jabar Hamdan.

Q. And is that on any of the lists that we saw early on in 

your testimony of people who are affiliated with the a HLF?

A. He was one of the attendees at the Philadelphia meeting.

THE COURT: Let's take the morning break here. 

Let's break until 11:00. 

(Whereupon, the jury left the courtroom.)

THE COURT: We are in recess until 11:00.

(Brief Recess.)

THE COURT: Are we still on for the schedule that we 

discussed this morning? 

MR. JONAS: Yes, sir. 

(Whereupon, the jury entered the courtroom.)

THE COURT: And members of the jury, before we 

start, I forgot to tell you something about our scheduling. I 

intended to tell you earlier this morning. 

We are taking off tomorrow. I think you remember when we 

were having the jury selection we told you we would be working 

four days a week. Normally we will be off on Fridays except 

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for a few weeks. This is one of those weeks that we will be 

off tomorrow and work Thursday and Friday, then. 

And also Agent Burns isn't feeling well, so we are going 

to work until probably about 12:30 and then you will be off 

for the day, and tomorrow, and we will be back on Thursday 

morning. Plan on being here Thursday and Friday of this week, 

because we told you we would be off some Fridays but this 

Friday we will be here. 

MR. JONAS: We were playing Baker Wiretap No. 4, and 

if we could continue where we left off.

(Whereupon, Baker Wiretap No. 4 continued to be 

played, while questions were propounded.)

Q. (BY MR. JONAS) Agent Burns, do you see where it says, 

"It is because of those monitoring your phone"?

A. I do.

Q. Were there other conversations involving the Defendants 

where they referenced the phones being tapped?

A. Yes.

Q. Agent Burns, Omar Ahmad is saying to the Defendant Shukri 

Abu Baker, "Let's give him 25 now." Who is he referring to as 

"him"?

A. The Defendant Mohammad El-Mezain.

Q. That is in the call they talked about earlier about Abu 

Ibrahim?

A. That is correct.

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Q. When he is saying, "Let's," again, is Omar Ahmad part of 

the Holy Land Foundation?

A. No.

Q. Okay. Agent Burns, again, do you see where Omar Ahmad 

says, "We give him 20 now, for the past 20"? 

A. I do.

Q. You said Omar Ahmad is not a member, employee, director, 

or officer of the Holy Land Foundation?

A. That is correct.

Q. But what is his involvement where he is now directing 

Shukri Baker or discussing how much to give the Defendant 

Mohammad El-Mezain?

A. He was a leader within the Palestinian Committee. 

Q. Agent Burns, before we play the next segment, can you 

remind us again the date of this call?

A. This was May 25th, 1999.

Q. Okay. Was this after Hamas was designated a terrorist 

organization by the United States?

A. It was.

Q. And what was going on with the Defendant Mohammad 

El-Mezain in regard to his relationship with the HLF at this 

time?

A. In 1999 he stepped down as the chairman of the board of 

the HLF, and was moving to San Diego to take a position as the 

HLF's projects and grants director, and was in need of money. 

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Q. Agent Burns, do you know who Wafa is?

A. Yes.

Q. Who is he?

A. Wafa Yaish was the accountant for the Holy Land 

Foundation at the time of this call. 

Q. Agent Burns, they were laughing about dumping something 

on Ghassan. Who is Ghassan and what was being dumped on him?

A. The Defendant Ghassan Elashi was going to be appointed 

the chairman of the board for the Holy Land Foundation.

Q. I forgot to ask you something a moment ago. If you 

recall, you testified about the dispute between the Holy Land 

Foundation and the Al-Aqsa Educational Fund. Do you recall 

that?

A. I do.

Q. You testified about how Mohamed Siam and Jamil Hamami 

went down to see Ashqar, and they discussed Ashqar and the 

situation. Correct?

A. Correct.

Q. Could you just briefly remind us what the discussion was 

about at that meeting?

A. At that meeting Jamil Hamami and Mohamed Siam informed 

Abdel Haleem Ashqar that he was to abide by the Palestinian 

Committee decision as a result of that teleconference. And he 

also read the letter from Mousa Abu Marzook requesting that he 

halt his activities until he arrived in the United States.

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Q. Just so we remember the participants, you said a letter 

from Marzook, who is on this top in the green area on the far 

right?

A. That is correct.

Q. And then Jamil Hamami on the bottom row, third from the 

left; Mohamed Siam in the middle row, far left?

A. That is correct.

Q. Do you have before you Shukri Baker's deposition, Baker 

Deposition?

A. I do.

Q. If you can turn to page 74 of that deposition. It is the 

deposition page number.

MR. JONAS: And if we can pull up I believe it is 

page 6 for our purposes, on the screen.

Q. (BY MR. JONAS) Agent Burns, could you read what is on 

the screen?

A. Yes. The question says, "How about Mr. Abu Marzook? Do 

you know who he is?"

Answer: "Yes." 

Question: "Okay. Now, it's my understanding at some 

point he made a contribution to the Holy Land Foundation. Is 

that correct?" 

Answer: "Yes." 

Question: "Okay. And I want to ask you about that in a 

minute. Let's put that aside for the moment. Other than that 

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contribution, are you aware of any relationship or involvement 

that Mr. Abu Marzook had with the Holy Land Foundation?" 

Answer: "No."

Q. Agent Burns, did Shukri Baker say anywhere in his 

deposition that Mousa Abu Marzook intervened in a dispute 

between the HLF and the Al-Aqsa Educational Fund?

A. No, he did not.

Q. Agent Burns, I want to move to a new topic.

A. Okay.

Q. You testified that the Holy Land Foundation held itself 

out to be a charity. 

A. Yes.

Q. And is one of the functions of a charity to raise money?

A. It is.

Q. In fact, have we seen a discussion or evidence of HLF 

raising money?

A. Yes.

Q. Generally, based upon your review of the evidence, the 

search warrant material, and the wiretaps, and everything you 

have gathered, can you generally tell us how the HLF went 

about raising money?

A. They raised money several different ways. They would 

bring in speakers from overseas to raise money at mosques and 

festivals and things likes that. They would also hold 

teleconferences where speakers would call in and talk about a 

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topic of relevance and people would contribute or pay to 

participate in the conversation or in the teleconference. 

They would put ads in their periodicals in the Illa Falistines 

and Al Zatounia papers, the Palestinian Committee papers, and 

later on they started more the mass mailing campaigns and 

things like that as well.

Q. And at the conferences, were some of those conferences 

videotaped?

A. Yes, they were.

Q. We have seen a few of those videotapes already?

A. We have seen a few.

Q. Are you familiar with Mushtaha Search No. 1?

A. I believe that is a videotape.

Q. Where was that videotape seized from?

A. That was one of the buried videotapes that was in the 

yard of Fawaz Mushtaha.

Q. Are the Defendants on this particular videotape?

A. Yes.

Q. Do you recall the year of this tape? Were you able to 

date the year?

A. We were able to date it to approximately 1990.

Q. Okay. 

MR. JONAS: Your Honor, at this time I would offer 

into evidence Mushtaha Search No. 1. 

MS. CADEDDU: No objections beyond those previously 

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stated, and relevance as to date.

THE COURT: All right. And those are overruled, and 

that is admitted. 

Q. (BY MR. JONAS) Agent Burns are we going to play the 

whole tape?

A. No. It was about two hours in length, I believe, this 

one.

MR. JONAS: If we can start the tape, please.

(Whereupon, Mushtaha Search No. 1 was played, while 

questions were propounded.)

Q. (BY MR. JONAS) Obviously the quality of this tape is not 

that great of quality. Do you have any idea why that is?

A. This was one of the tapes that had to be cleaned and put 

back together because it was buried in the mud in the yard of 

Fawaz Mushtaha. 

Q. Agent Burns, do you recognize any of those individuals 

sitting there?

A. Yes. Not in the first row that you are looking at, but 

in the next row if you look closely there is a gentleman in 

what appears to be a blue blazer and a striped tie. He has a 

beard with dark hair. That is Hamas leader Mahmoud Zahar.

Q. Okay. I am holding up Demonstrative No. 17 again. Where 

on this chart is Mahmoud Zahar?

A. Closest to you on the second row.

Q. The row I am pointing to?

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A. Correct. Seated next to him, and you will see this 

better once it starts moving, is the Defendant Mohammad 

El-Mezain.

Q. As we are facing the screen, on which side of Mahmud 

Zahar is the Defendant El-Mezain?

A. As we are facing the screen he is to the left. And then 

to the left of Mohammad El-Mezain as you will see as the 

videotape moves on just a little bit, is Hamas leader Jamil 

Hamami that we have just been talking about.

Q. In regard to the Al-Aqsa Educational Fund issue?

A. The dispute. That is correct.

Q. Okay. Do you see Jamil Hamami on that screen? 

A. Yes. That is the gentleman in the beard next to the 

Defendant Mohammad El-Mezain.

Q. We have three individuals on the screen now. Just so we 

are clear, go from left to right as we face the screen. 

A. As we face the screen, from left to right is Jamil Hamami 

Hamas leader from the West Bank, Defendant Mohammad El-Mezain 

Mahmud Zahar, Hamas leader from Gaza. 

Q. Agent Burns, I know this is the beginning of the video so 

it may not be clearest, but are we going to be able to 

identify who these band members are?

A. Yes, we are.

Q. Is there anyone there -- Are any of the Defendants in 

this band?

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A. Yes. The defendant Mufid Abdulqader, and also Fawaz 

Mushtaha I believe we will see in a little bit, the person 

whose yard this videotape was found in. 

Q. Who is that individual?

A. That is Fawaz Mushtaha.

Q. Okay. Who is that individual?

A. That is the Defendant Mufid Abdulqader. 

Q. Who is the individual that just walked on the screen?

A. That is the Defendant Shukri Abu Baker, and you will see 

him down there in that portion of the screen periodically 

throughout this tape. 

Q. Agent Burns, he says, "headquarters are located in your 

city." Are you able to tell us what city that this conference 

took place in based upon the date of the conference and by 

that statement by the Defendant Mohammad El-Mezain?

A. Based on the date and his statement, that would be in the 

area of Los Angeles, California.

Q. That was prior to the Holy Land Foundation moving to 

Richardson, Texas?

A. That is correct. 

Q. Agent Burns, are you able to identify the individual on 

the right of the screen?

A. Yes. The person on the right is the Defendant Mufid 

Abdulqader. 

Q. Agent Burns, the individual on the left, what is he 

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portraying?

A. He is portraying to be a Jewish soldier. 

Q. Do you see the name Ahmed Yassin? 

A. I do.

Q. Who is that?

A. The Hamas founder and former spiritual leader, the top 

person on the Hamas leaders' chart there.

Q. Do you see the name Abdullah Azzam?

A. I do.

Q. A name we will be discussing in a few minutes?

A. Yes. 

Q. Do you see who Shukri Abu Baker is thanking?

A. Shukri Abu Baker is thanking the guests that attended, 

and he names them--Mahmoud Al-Zahar and Jamil Hamami, the two 

people sitting beside El-Mezain in the audience. 

Q. Agent Burns, do you have before you Baker Declaration, 

which was his sworn declaration in evidence filed in a civil 

lawsuit?

A. I do.

Q. If you can turn to page 2. 

MR. JONAS: If we can put that on the screen, 

please.

Q. (BY MR. JONAS) Could you read the top line, please?

A. It says, "Neither I, nor to my knowledge, any of the 

other founders of this charity have had any connection 

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whatever to Hamas, or to any terrorist groups, or to 

terrorism." 

Q. Agent Burns, I want to go back to some of the Elbarasse 

records. Do you have before you Elbarasse Search No. 13? 

MR. JONAS: If we can put Elbarasse Search No. 13, 

page 7, on the screen. Enlarge the middle portion, please. 

Q. (BY MR. JONAS) What is this document again?

A. This is a Palestine Committee report.

Q. Do you see No. 5?

A. I do.

Q. What does that say?

A. It says, "Six issues of Ila Falistine have been issued."

MR. JONAS: If we can go to Elbarasse Search No. 14, 

specifically page 6. Enlarge the bottom. 

Q. (BY MR. JONAS) Do you see anything on this page -- 

MR. JONAS: I am sorry. The top half?

THE WITNESS: No. 6, I believe.

Q. (BY MR. JONAS) Yes. What does that say?

A. It says, "Under the Islamic Association For Palestine 

achievements," "Issuing nine issues from Al-Zatounia magazine, 

four issues from the Palestine monitor newspaper in English, 

and one issue from Ila Falistine, and reprinting and 

distributing six statements for Hamas."

Q. Have you seen any of these issues of Illa Falistine?

A. I have.

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Q. Okay. Did you obtain them in the search warrant or by 

grand jury subpoena or anywhere like that?

A. No. 

MS. HOLLANDER: Can we approach, Your Honor? 

THE COURT: Yes. 

(The following was had outside the hearing of the 

jury.)

MS. HOLLANDER: Your Honor, in looking through these 

Illa Falistines, we would ask that they not be -- that you not 

admit Illa Falistine No. 2. They have four others. And this 

one has a long article about Azzam that includes discussions 

about Afghanistan, Malaysia. It makes it sound as though 

Hamas is international. That is not what is intended here, 

but that is what it is going to sound like. That page and the 

page before. But they can make the point with the others. 

MR. JONAS: Your Honor, Abdullah Azzam is an 

individual who the Holy Land Foundation used to raise funds, 

and what I mean by that is not in person. They used his image 

and videotapes of him. And we are going to get to that soon. 

And then on the screen will flash "Send your donations to the 

Occupied Land Fund." 

And he is a radical figure and he doesn't talk about 

sending money for children or anything flowery. It is 

weapons. He is a radical figure. There is no question about 

it. And in that article, the very end says, "Send your money 

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to the OLF." So there is no way of sugarcoating this.

MS. HOLLANDER: Well, there is another mention of 

him here. And, you know, we didn't really get into this last 

time, but he came to the United States on a visa. He was 

fighting -- He was asking for money for the mujahideen 

fighting the Russians, and that doesn't come out in this 

video. I mean, there is a lot of problems we can't address 

because -- In fact, he was killed probably by Osama bin Laden 

later in Afghanistan. We can't get into that, obviously. He 

came here -- This is 1988, because he was killed in 1989. 

THE COURT: The objection is to the mentioning of 

Afghan, as I understand it, because I am letting it in; it is 

in--and the Philippines and Afghanistan. 

MS. HOLLANDER: If we can just take this article 

out, there is another place where it is mentioned. 

THE COURT: Do you want to take the entire article 

out? 

MS. HOLLANDER: That article. They can mention him 

here because, I mean, it is not as bad, because at least there 

he is talking about fighting the communists. He is not 

talking about everything else.

The problem is, Your Honor, we can't address this; we 

really can't, without getting into how he was killed.

THE COURT: Why would you get into why he was 

killed? 

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MS. HOLLANDER: Well, I don't want to, but if they 

just take out that article and leave the other one, this also 

says -- This one, too, says give to -- It is the article that 

concerns me, because it goes into detail.

THE COURT: Are you planning on getting into this 

right now? 

MR. JONAS: Given that we are breaking soon, I 

probably won't get to it, but it is probably going to be early 

on Thursday I guess at this point. And I am going to lay a 

foundation as to how the HLF used the image of Abdullah Azzam 

to raise funds. 

And if you want us to black out the word Afghanistan, 

that is fine, but I think this article should come in. 

MS. HOLLANDER: Your Honor, the problem is he was 

here in 1988, we are talking about. He came I believe on a 

visa from the United States who asked him to help, because at 

that time the United States was supporting this fight against 

the Russians in Afghanistan, and he was very -- He was raising 

money for this fight against the Russians that in fact the 

United States was supporting financially. And he talks about 

the mujahideen. He is very fiery, but he is talking about -- 

You know, it is a whole different timing era, and we can't 

respond to it, because to respond to it we would have to 

explain who killed him.

MS. MORENO: If I may just add one thing, Your 

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Honor. My recollection is that Azzam was used in IAP videos, 

not Holy Land videos.

MR. JONAS: At the end of the videotape of a speech, 

in fact in several tapes like this, it is not just one, of 

Abdullah Azzam, it flashes on the screen "send your tax 

deductible donations to the OLF." They are the ones, the 

Defendants, who did that. And they kept that tape until 2001. 

And, Your Honor, the tape I just played I left one 

segment out which I plan on playing soon where the Defendant 

El-Mezain talks about Azzam and praises Azzam and says he was 

with Azzam and he worked with Azzam. They are the ones who 

took advantage of Azzam and who he was to raise funds, and we 

should not be precluded from getting into who he is. And we 

are not getting into the bin Laden issue.

MS. HOLLANDER: I know. But we can't respond is the 

problem without getting into the bin Laden issue. That is the 

problem, because he was here to raise money for the mujahideen 

fighting Afghanistan. That is what it was all about for him. 

And he doesn't say -- Azzam I don't think says "Give money to 

the Holy Land Foundation." They have taken this --

THE COURT: It says it in here.

MS. HOLLANDER: I know. But he doesn't say it. He 

is dead when this comes out. What they have done is they have 

these videos, and at the end they just flash "Give money to 

Holy Land," but there is really no link between him and Holy 

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Land. The link is --

THE COURT: He is there at that conference.

MS. HOLLANDER: Azzam? No, no. He was dead. 

MR. JONAS: El-Mezain mentions him.

MS. HOLLANDER: He mentions him, though, because he 

was a Palestinian hero who was fighting the Russians. That is 

what he was. And then he got into a hassle with bin Laden who 

killed him.

MR. JONAS: Your Honor, I find this argument by Ms. 

Hollander very ironic. There is a video of Abdullah Azzam 

standing up there and saying "Give to the Occupied Land Fund." 

She would likely come back and say, "Well, he is saying it. 

We are not saying it." In this instance it is the Defendants 

who are taking his image and his speeches and slapping their 

ads on it.

MS. HOLLANDER: It is IAP who is doing that.

MR. JACKS: IAP is a co-conspirator.

THE COURT: I understand that is your position. The 

position is they are linked, and they have certainly 

introduced evidence -- 

MS. HOLLANDER: I understand. But it is not Holy 

Land. But it is just -- The 403 issue with Azzam is so great 

that all we are asking them to do is remove that. I mean, 

they have got plenty of other things they can talk about, they 

have got plenty of other people they can talk about without, 

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including Azzam and without including that video of Azzam. 

They have got plenty of other things. Because that video, and 

I mean, maybe you should look at it. He is raising money, I 

believe, for Afghanistan.

THE COURT: What exhibit number is that? 

MR. JONAS: There are several videos like that, but 

one is Mushtaha No. 2; one is Mushtaha No. 9. 

Your Honor, we strongly, strongly object to not being 

able to play that. 

THE COURT: Well, I haven't seen it yet. I will 

take a look at it.

MR. JONAS: Let me just make one other point. These 

Defendants are holding themselves out to be a charity, a 

peaceful charity, and yet they are taking this fiery rhetoric 

by this person and slapping their -- I understand Ms. 

Hollander saying it is IAP, but IAP is a co-conspirator. 

Assuming the IAP is doing it. We don't know if the IAP is 

doing this. Some of these tapes I think were found at the 

HLF, and some at Mushtaha. I am not sure about that 100 

percent. 

MS. HOLLANDER: But Your Honor, he is missing the 

point. Azzam was talking about something else. I mean, we 

can't get into Afghanistan and fighting the Russians and the 

U.S. support of that. I mean, if you want to get into that, 

that is going to get us down a road that we don't want to go 

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to.

MR. JONAS: On the tape he doesn't identify who he 

is talking about. He doesn't say Afghanistan or Mujahideen. 

And in that clip with the Defendant El-Mezain he refers back 

to the same speech. El-Mezain refers back to something that 

Azzam says which is on the videotape of Azzam.

THE COURT: What are you going to do now between now 

and the lunch break? 

MR. JONAS: This is not the Illa Falistine I am 

getting into right now with this witness.

THE COURT: Are you getting into this right now.

MR. JONAS: I am not getting into this one now, but 

it is coming soon.

THE COURT: Well, before we break for lunch? 

MR. JONAS: Probably not.

THE COURT: We can take a look at that this 

afternoon, the videotape you are talking about. And I read 

this earlier, but there are five of these and three newspaper 

articles. I need to go back and read them again. 

Just take a look at that tape. I know we can't do it 

before lunch, but we will take a look at it this afternoon. 

(The following was had in the presence and hearing 

of the jury.) 

Q. (BY MR. JONAS) Agent Burns, I was asking about the Illa 

Falistine magazines and if you looked at any. 

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A. Yes, I have.

Q. Do you have before you what has been marked as Illa 

Falistine No. 1?

A. I do.

Q. Okay. And are you able to -- What language is it in?

A. Arabic.

Q. Do you have it translated, or some pages of it 

translated?

A. Parts of it.

Q. And you testified that the IAP published the Illa 

Falistine magazines?

A. That is correct. According to the documents that we have 

looked at.

MR. JONAS: Your Honor, at this time I would offer 

into evidence Illa Falistine No. 1. 

THE COURT: Any objections, besides those that have 

been submitted in writing? 

MS. HOLLANDER: Not any additional.

THE COURT: Those have been overruled and this 

exhibit is admitted. 

MR. JONAS: If we can turn to page 5.

Q. (BY MR. JONAS) Agent Burns, what is the title of this 

article or writing?

A. It says, "Hamas Hayzum has come."

Q. Have you read it?

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A. I have.

Q. Okay. 

MR. JONAS: And can we just go to page 7, the end of 

it? 

MS. HOLLANDER: Can you give us a date on this 

magazine? 

Q. (BY MR. JONAS) Are you able to date the issue?

A. It is from 1990.

Q. 1990? Okay. 

Agent Burns, on page 7, this is the end of the writing, 

the article. How would you describe this? What would you 

call this?

A. It is like a poem.

Q. A poem. Okay. And the title was again?

A. "Hamas Hayzum has come."

Q. Would you read the last three lines and the author?

A. Yes. "The youth who spoke for the dead and acted on 

behalf of the living.

"The Hamas Hayzum has arrived, and we will not accept 

other than Hamas."

Q. Who wrote this according to this document?

A. Shukri Abu Baker.

Q. Who is that?

A. The Defendant Shukri Abu Baker, who also sat on the IAP's 

advisory board.

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Q. Can you turn back to Baker Declaration, please?

A. Yes.

Q. Page 2 on the top. What does that top line say?

A. Shukri Abu Baker says here, "I reject and abhor Hamas, 

its goals, and its methods. I reject terrorism by anyone."

Q. That is fine. And the last line of that poem was?

A. "We will accept none other than Hamas." I will get it 

out and read it exactly. "We will not accept other than 

Hamas."

Q. In this Illa Falistine, if you can turn to page 8, what 

is that?

A. This is an advertisement, or the translation of it, for 

the Occupied Land Fund, which is the Holy Land Foundation.

Q. Okay. Did you see other Illa Falistine magazines that 

had ads on it for the Occupied Land Fund or the HLF?

A. I did.

Q. Do you have before you Illa Falistine No. 3, 4, and 5?

A. I do.

Q. What language are these documents in?

A. They are in Arabic.

Q. Did you have some of them translated, some pages of them?

A. Some parts of them, yes.

Q. What are the dates of these issues, if you can tell us by 

issue?

A. Illa Falistine No. 3 is from October of 1988; Illa 

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Falistine No. 4, December of 1988; Illa Falistine No. 5, 

February 1989.

Q. Okay. 

MR. JONAS: Your Honor, at this time I would offer 

into evidence Illa Falistine No. 3, Illa Falistine No. 4, and 

Illa Falistine No. 5.

THE COURT: Any objections, beyond those previously 

made? 

MS. HOLLANDER: No, sir.

THE COURT: And those documents are admitted. 

MR. JONAS: If we can put on the screen Illa 

Falistine No. 3, page 3.

Q. (BY MR. JONAS) Agent Burns, is this the cover page?

A. It is.

Q. And what does it say in terms of what is contained within 

the content of the magazine?

A. It indicates that the charter of the Islamic Resistance 

Movement Hamas was contained therein.

Q. Turn to page 4. What do you see in the middle?

A. An ad for the Occupied Land Fund, which is the Holy Land 

Foundation.

Q. Juxtaposed to the ad what is right above it?

A. It is an article about Hamas.

Q. Is that the whole article, or is that just part of the 

article?

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A. I believe it is continued from a previous page.

MR. JONAS: And if we can turn to Illa Falistine No. 

4, page 3, please.

Q. (BY MR. JONAS) And what does this cover page say is 

contained within this magazine?

A. This translation says that the magazine contains 

information on the Palestinian state and also field visits to 

the families of the martyrs. 

MR. JONAS: Can we jump to page 1?

Q. (BY MR. JONAS) This is the cover of the magazine 

untranslated. Correct?

A. That is correct.

Q. And you see there is a picture there?

A. I do.

Q. All right. 

MR. JONAS: If we can jump back to page 3, please.

Q. (BY MR. JONAS) What does it say in English that is under 

the caption of that picture?

A. Under the caption of the picture, it says, "The 

Palestinian flag dipped in blood in one hand, the Quran in the 

other, a scene from the martyrs' funeral in Nablus."

MR. JONAS: Can we turn to page 4, please? 

Q. (BY MR. JONAS) And what is on the bottom half of this 

page?

A. The bottom half is a solicitation for donations from the 

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Occupied Land Fund, Holy Land Foundation.

Q. You see it says P.O. Box 38, Plainfield, Indiana?

A. I do.

Q. What is that?

A. That was the original address that the HLF used.

Q. What is above the solicitation for donations to the 

Occupied Land Fund?

A. A communication from the Islamic Resistance Movement 

Hamas.

MR. JONAS: If we can focus on the middle right hand 

side, please. 

Q. Is that where you are getting the information?

A. Yes. You can see at the bottom where it is signed 

Islamic Resistance Movement Hamas.

MR. JONAS: If we can turn to Illa Falistine five, 

please, page 1. And if we can go to page 5, please. 

Q. (BY MR. JONAS) What do we see in the bottom half?

A. An advertisement for the Occupied Land Fund, the HLF.

Q. What is above that?

A. A statement from the Islamic Resistance Movement Hamas.

MR. JONAS: If we can enlarge the bottom right hand 

side. 

Your Honor, I am at a point -- 

THE COURT: All right. Let's go ahead and break 

here for the day. Be back Thursday morning at 9:00.

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Please recall the instructions that we have been over 

about not discussing this case with anyone, or not letting 

anyone discuss it with you. See you back Thursday morning. 

(Whereupon, the jury left the courtroom.)

THE COURT: Anything we need to address before we 

recess? 

We will be back at 3:00. Did you want your client here 

at 3:00? 

MR. CLINE: If we may have one moment? 

MR. JONAS: Your Honor, are we going to address the 

issue we discussed at sidebar, because I am at that point.

THE COURT: Yes. Just be sure to bring that up. 

And have you had a chance to look at their list, their 

exhibits? 

MR. JONAS: Not really. We will do that during the 

break. 

MR. CLINE: Yes, Your Honor. Mr. Elashi would like 

to be here.

THE COURT: So be back at 3:00, then. And have Mr. 

Elashi here. And I will be prepared to rule on the objections 

to the Defense exhibits and this issue we just discussed at 

the sidebar. 

MS. CADEDDU: Your Honor, the Defendants don't have 

to be here, though? 

THE COURT: No, they are not required to be here for 

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this.

(Lunch Recess.)

THE COURT: Mr. Cline?

MR. CLINE: I am only here because I happened to be 

standing near here when you walked in.

I have talked briefly with the Government and want to 

make the following suggestion to the Court, which they at 

least I think do not oppose. I think their position is it is 

in your discretion, which it is.

We would much prefer to take up the issue of the 

Government's objections to our proposed exhibits a little 

later in the process. We have given the Government a list, 

which is essentially the list of the exhibits that we put in 

last year with Agent Burns. I can tell Your Honor, though, 

that that list is going to change, both as she finishes her 

direct and as we perfect, and perfect is too optimistic a word 

but refine shall we say our cross of Agent Burns, which we 

will be doing tomorrow and Thursday as well.

What I would like to suggest, therefore, is that the 

Court delay this discussion of our exhibits until either the 

end of the day Thursday, I think the plan from the 

Government's perspective is to have Agent Burns finish her 

direct Thursday sometime or the first thing Friday morning, 

whatever the Court prefers. In the meantime we will continue 

to refine the list. There are some exhibits Mr. Jonas told me 

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are already in there are others we are not going to use and I 

am sure there will be additional ones that they are probably 

going to want to object to. 

THE COURT: Okay. So Mr. Jonas.

MR. JONAS: That is fine with us, Your Honor. The 

whole purpose of this exercise we are not constantly objecting 

when Agent Burns is on cross so if we do in before cross at 

any point that is fine. We do have a series of objections to 

their proposed exhibits, so we just want to be heard at some 

point.

THE COURT: Okay. Well, we can wait on that, 

then -- How long do you anticipate your direct on Agent Burns 

lasting? 

MR. JONAS: I am going to go through the rest of the 

day Thursday. I think if the Court probably noticed the 

videos slowed things down and while I have a series of videos 

to play none will be as long as the ones I played before. It 

still takes time. I am hoping by the end of the day Thursday 

I am done with her, at the latest maybe early Friday.

THE COURT: So we can take this up at the end of 

Thursday or early Friday morning.

MR. CLINE: That will be fine. 

THE COURT: Why don't we -- Yes? 

MS. CADEDDU: Do you want to do this now we have an 

issue we need to take up with the Court at the bench.

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THE COURT: Now is as good a time as any. We are at 

a breaking point. 

(The following was had outside the hearing of the 

Jury.)

MS. CADEDDU: Judge, we are doing this at the bench 

because the media is here and we don't want to make this blow 

up any worse than it already is. 

There is a lady who has been in attendance who has been 

apparently, we learned today, hanging out with the other two, 

the one you chastised yesterday. 

Today as we were leaving, we were waiting -- We always 

wait for the jury to go on the elevators because the CSOs 

gather them up. This lady went in the bathroom, she hung out, 

she walked back and forth and waited until the jury --

MS. HOLLANDER: She walked back and forth in front 

of them.

MS. CADEDDU: And then attempted to get on the 

elevator with them. And at that point we talked to the CSO, 

Mr. Hillburn, Ms. Hollander did, and he went and put the 

jurors on an elevator by themselves and didn't let her on. 

Subsequently our clients have told us that they know who 

she is. She is this sort of crazy jihadist under-the-bed 

blogger lady. This is a photograph of her. You have seen 

her. She was in the front row, I think. And I have got all 

sorts of her very, very vociferous blogs about the last trial 

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and this trial. 

What we are concerned about, like this one here is 

another one of her entries, cutting off the head of the snake. 

You probably don't need it. And what we are concerned about 

is that there seems to be a concerted effort by these ladies 

to actually have contact with our jurors and try to somehow 

influence them. And, you know, I don't know exactly what 

remedy we need, but -- 

MS. HOLLANDER: Well, it has been suggested, and I 

don't know whether you could do this, or would want to, 

whether you can tell them they have to go to the overflow 

room, or whether -- I don't have any idea how far your 

authority goes to tell them how far away they have to stay 

away from the jurors. But she was like as close to the jurors 

as I am to Mr. Jacks.

THE COURT: I think we will be all right. Tom was 

telling me about that just now as we were coming in. They now 

know her and they have gotten some identification, so they 

will be watching for that to make sure she doesn't get with 

the jury. 

MS. HOLLANDER: I am wondering what happens when 

they go downstairs. I mean, I sent Martha down with her 

today. I think she tries to go down and get with them as they 

are leaving.

MS. CADEDDU: What concerned us was that there was a 

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clear effort today to wait for the jury and to get on the 

elevator with the jury after you had chastised her friend.

THE COURT: Do we know that they are together? 

MS. CADEDDU: Yes. Well, Mr. Hillburn said they are 

together. 

MS. HOLLANDER: He said they were all sitting 

together.

THE COURT: I couldn't tell that they were sitting 

together. I just couldn't tell. I saw different people. I 

couldn't tell that they were like sitting together, so I don't 

know. 

MS. MORENO: The problem, Your Honor, is that, of 

course, in the bathrooms, the CSOs can't go in there. At 

lunchtime when we are in the cafeteria sometimes, what we try 

to do is leave the courtroom as soon as possible to beat the 

jurors, but sometimes we see them down there and she is down 

there. So I don't think that the guards, the CSOs can keep an 

adequate eye on her. I am very concerned. I have been down 

this path before in other cases, and I am very concerned about 

this.

If the Court is not inclined to ask her to be in the 

overflow room, in an abundance of caution I would ask the 

Court to admonish her.

MS. HOLLANDER: Not to have magazines and stuff 

sitting out by them? 

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THE COURT: Has she had magazines? 

MS. HOLLANDER: We don't know.

THE COURT: And I don't either.

MS. HOLLANDER: We don't know what happens in the 

lunchroom.

THE COURT: I think if she is doing something really 

untoward I think we would hear from the jurors. They know to 

report any of that. And I will remind them of that Thursday.

MS. MORENO: I would ask the Court to do that.

MS. HOLLANDER: That is a good idea.

THE COURT: If they think or see or hear any 

improper -- anybody attempt to contact them, to be sure and 

let us know.

And they will watch in terms of getting on the elevator 

and maybe on the first floor, because they are taking them 

down to that central jury room. So they can watch that. They 

can't watch everything. But I think that should be enough -- 

MS. HOLLANDER: So they take them all the way down? 

THE COURT: I think we can start doing that.

MS. HOLLANDER: That will help.

THE COURT: I don't know whether they did that today 

or not, but we can tell them to watch her, if nothing else.

MR. JACKS: Just so the record is clear, Judge, the 

Defendants' supporters everyday at lunchtime are across the 

street from the courthouse, and I am talking about family 

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members of the Defendants, holding up signs, and that is 

clearly intended to reach the jury.

THE COURT: Right.

MR. JACKS: And yesterday they were handing out 

something to eat, and just people were flocking like birds. 

So I understand it is a difficult thing for a court to 

control, but --

THE COURT: We can control it in here. 

MR. JACKS: But that is the pot calling the kettle 

black.

THE COURT: We can't let that go on in here. 

Obviously if she wants to put her sign up across the street, 

she can go and put her sign up.

MS. MORENO: That is right, but not in the courtroom 

and the courthouse.

THE COURT: But we can control it in here. I just 

don't want to jump the gun. I don't know what she is doing. 

I don't know that she has done anything improper. 

MS. CADEDDU: And we don't either.

THE COURT: That is why I don't want to jump the gun 

and start kicking her out. Obviously we can if I got to the 

point that I thought she was doing something. I am not there, 

so I just don't want to do that.

MS. HOLLANDER: I wanted to make sure you know what 

we know so far.

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THE COURT: I am glad you did. 

MS. HOLLANDER: But if she wants to go outside and 

put her sign up, she can do that. 

THE COURT: She can put her sign up next to the 

other folks if they want to do that. Of course, we will 

instruct the jury. I don't think they will be influenced by 

that. I am concerned about the more direct contact with the 

jury. We can't let that happen in here.

MR. JACKS: If you want to talk to her and tell her 

to just stay away from them.

THE COURT: I think I will just let -- We will talk 

to the CSOs out there at the mag and here and ask them to keep 

an eye on her, and if it looks like she is trying something, 

we can talk to her. And I can to tell the jury. Remind me, 

because I intended to tell them today and I forgot that if 

somebody does try to contact them in any way about the case to 

be sure and let us know.

MR. JACKS: I will be happy to tell her. I don't 

know who she is, but she is not doing us any favors.

MS. CADEDDU: We are not suggesting the Government 

is --

THE COURT: Folks just have their own agenda for 

whatever reason. 

Yes? 

MR. JONAS: Are we going to argue the Abdullah Azzam 

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issue? 

THE COURT: Yes. That is where we are going. 

(The following was had in open court.) 

THE COURT: Mr. Jonas? 

MR. JONAS: Your Honor, I guess what I propose there 

are five videos that are have the subject matter we discussed. 

We are ready to play them if Your Honor wants to see them.

THE COURT: Yes. And in goes to which particular 

issue? 

MR. JONAS: This is the Abdullah Azzam issue who is 

also in the Illa Falistine magazine.

THE COURT: Let me listen to those. And then also 

before we leave I would like to hear the one that has to do 

with the Dallas Morning News editorial.

MR. JONAS: It may take just a moment to figure out.

THE COURT: Sure. And we can try to resolve that 

one as well.

MR. JONAS: I think the first video we are playing 

actually came from the search warrant of Ismail Elbarasse's 

home. This is Elbarasse Search No. 32. 

(Whereupon, Elbarasse Search No. 32 was played.)

MR. JONAS: Your Honor, the next one is Mushtaha 

Search No. 9.

(Whereupon, Mushtaha Search No. 9 was played.)

MR. JONAS: Your Honor, the next tape we are playing 

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is Mushtaha Search No. 7. And Your Honor, just so we are 

clear, on that last tape there is another segment that we plan 

on playing that doesn't have Abdullah Azzam on it. 

THE COURT: Okay.

(Whereupon, Mushtaha Search No. 7 was played.)

MR. JONAS: And Your Honor, also for the record on 

that one there are additional portions of that tape which we 

want to play, and those additional portions show the Defendant 

Mohammad El-Mezain raising money, show the band singing songs 

with the Defendant Mufid Abdulqader on it. And as Your Honor, 

Abdullah Azzam is talking about Palestine and Palestinian 

jihad right when the OLF ads appear.

The next one is Mushtaha Search No. 2.

(Whereupon, Mushtaha Search No. 2 was played.)

MR. JONAS: Your Honor, he is praising Sheikh 

Yassin, who we know is the spiritual leader of Hamas. All we 

heard is Palestinian jihad out of his mouth. And although we 

didn't see an OLF ad in that one, I would like to show Your 

Honor one more clip where one of the Defendants referenced 

back to the things he said in that clip that we just played. 

This is Mushtaha Search No. 1. This is the video I 

played this afternoon, except I left one segment out. We will 

play that segment now. 

THE COURT: All right.

(Whereupon, Mushtaha Search No. 1 was played.)

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MR. JONAS: Your Honor, as you can see clearly, the 

Defendant Mohammad El-Mezain refers back to statements made by 

Abdullah Azzam about giving up refreshments, giving up fruit, 

giving up meat in order to generate money, put money away for 

Palestinian jihad. And I think the Illa Falistine article 

just follows on the heels of all of this. 

THE COURT: And you are wanting to introduce, then, 

that article as part of Illa Falistine No. 2.

MR. JONAS: Yes, sir.

THE COURT: And you are objecting to that one 

article, or are you objecting to other -- 

MS. HOLLANDER: I am objecting to that article. I 

am objecting also to these videos, Your Honor. 

The whole issue with Azzam is a complicated one. He died 

in 1989, so all of this, none of which is dated, has to be 

before that. And I think El-Mezain says "two years ago." So 

we are talking about 1987, 1988. 

The Intifada had just started. It is very hard for 

jurors to compartmentalize what is going on. He is also 

talking on one of these about Pakistan and the guns he is 

talking about buying in Pakistan. 

If Azzam comes into this case, it opens a vast political 

arena that I don't think we want to get into. And I think 

that the unfair prejudice of these, they have got plenty of 

other videos--of these far outweighs the scant probative 

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value. 

These were -- not a one of these comes from Holy Land. 

Four of them come from Mushtaha and one from Elbarasse. They 

obviously -- someone unknown has put parts of them together. 

There is no authentication that Holy Land or the Occupied Land 

Fund had anything to do with putting those things on those 

tapes. I am not counting the last one where El-Mezain talks, 

but the others. 

So if they limited it to El-Mezain talking and to the 

last page of that where it references the death of Azzam and 

has it right -- and also has an ad for Holy Land, I don't have 

mine with me, but I think it has it right after it, then we 

wouldn't object to that, if the Court would then -- If they 

would delete that article and the four tapes that we don't 

know where they came from. They are obviously from somewhere 

else. They stop and start. Sometimes he is talking about 

Pakistan and Afghanistan. Sometimes he is talking about 

Palestine. And it just gets into a lot of other issues that I 

don't think you want to get into here. 

And I don't think that they need it. I mean at some 

point it just becomes more unfair than it is probative. 

THE COURT: Okay. Thank you. 

Mr. Jonas? 

MR. JONAS: First of all, Your Honor, I don't recall 

seeing the words Pakistan or Afghanistan appear on the screen 

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at all.

THE COURT: Pakistan did. I don't know about 

Afghanistan. 

MR. JONAS: "We can buy the bullets from" --

THE COURT: That they could buy some weapons. But 

Afghanistan appears in the articles. 

MR. JONAS: He is not advocating for after Pakistan. 

He is clearly advocating for Palestine. When he is talking 

about Sheikh Yassin he is advocating for Hamas. 

This does not open a door to any other political issues. 

These tapes speak for themselves. We are not going to get 

into who this man was, beyond the fact that he was an 

inspiration for Hamas and Hamas suicide bombers and all of 

that. The fact that it is -- It came from Mushtaha's 

backyard. We already established he is a co-conspirator. He 

is intimately tied with these Defendants. The same with 

Elbarasse. So it is all part of this conspiracy that we --

THE COURT: What is your intent as far as any 

explanation as to who this man is? You stated beyond 

encouraging Hamas. 

MR. JONAS: First of all, Doctor Levitt has already 

established that he was -- And I forgot the exact words, but 

Doctor Levitt talked about him briefly and sort of laid that 

foundation that he was a Palestinian who -- a scholar and 

Mujahideen. I think Doctor Levitt really was very general, so 

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we didn't get into this area about Afghanistan.

THE COURT: Did you get -- Did he testify to any 

link with Hamas? 

MR. JONAS: I think he did. I think he testified 

that he was one of the Hamas original founders, if I recall 

correctly. I am pretty sure he did connect them to Hamas.

MS. HOLLANDER: I don't think so because I don't 

think that is true.

MR. JONAS: Well, I think there is some disagreement 

to that then, Your Honor. We can go back and check. 

THE COURT: We can go back and check. 

MR. JONAS: But even so, the co-conspirators in this 

case, whether it is the Defendants themselves or whether it is 

the people they are working closely with, have created this 

videotape that they are using to generate support, and the ad, 

"Send your donations to OLF," right on top of this man talking 

about Palestinian jihad and "give your money up for jihad," 

which is all what Doctor Levitt talked about in the economic 

jihad that came from the Hamas charter, I think it is 

incredibly relevant -- 

THE COURT: But going back to what I had asked, what 

are you intending to get from Agent Burns, or anyone else, in 

terms of explaining or saying more about Azzam? Anything else 

beyond what is on the videos? 

MR. JONAS: Not really, no. Not much beyond that. 

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It is his relationship to Hamas, if she knows it. And there 

is a chance Doctor Levitt may come back a second time, and if 

he does we may show this to him and ask him about Abdullah 

Azzam's relationship with Hamas, with no intention of going 

beyond that. So there is no intention of opening any vast 

political doors. 

THE COURT: Okay. So you don't need any references 

to Afghanistan that are in the periodical? 

MR. JONAS: Your Honor, if that is the issue and 

Your Honor wants us to black out the words -- 

THE COURT: Well, that is part of the issue, because 

what the Defense is claiming is that if you put that in, than 

that opens up this area and they will need to go into it and 

explain what is going on. We don't need to turn this into a 

case about Afghanistan. 

MR. JONAS: If Your Honor wishes, we can black out 

Afghanistan, Philippines, and I think that is all I see is the 

only two countries mentioned in this article.

THE COURT: And Afghanistan is mentioned in various 

places. You can look through that. Even the last page, I 

think that -- 

MR. JONAS: I see Afghanistan in a few places. We 

can block out the word Afghanistan if Your Honor wishes.

MS. HOLLANDER: It is on the first page, too.

THE COURT: The last page you were not objecting to 

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it also mentions to eliminate communism.

MS. HOLLANDER: I wasn't objecting not to the last 

page of the article, but -- and that mentions Afghanistan, 

too. 

THE COURT: So just go through and --

MS. HOLLANDER: Your Honor, could we ask, if I am 

anticipating your ruling -- 

THE COURT: Go ahead.

MS. HOLLANDER: I am correct I believe.

THE COURT: Actually I am still just trying to take 

the information in. I am leaning that way. I think it is 

relevant. I don't want to get to where we open up other 

areas. I think that they have brought in some evidence that 

links these groups and these documents and this evidence found 

at these places and tied it to Holy Land. Of course the tapes 

themselves are connected to Holy Land. 

I understand your concerns that you don't know who did 

it, but I think that goes to weight and not admissibility. I 

think that is ultimately up for the jury.

MS. HOLLANDER: Could we ask, then, that they not 

use Mushtaha No. 2 on the one that references Pakistan? 

Because I think if you listen to that one, what he is saying 

is "In Pakistan we buy." Now, if you didn't know that he is 

actually in Pakistan and raising money for guns, which is why 

the United States brought him here--to raise money for guns 

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for the Mujahideen--then you would think he is saying to the 

Palestinians "Go get your guns in Pakistan." But that is not 

what he is saying. I mean, I know that is not what he is 

saying because I know exactly what he was doing in the United 

States in 1988. And that one would really lead the jury to 

think exactly what Mr. Jonas said. He is saying, "We buy guns 

in Pakistan. You can buy them in Pakistan."

MR. JONAS: Your Honor, I think -- You know, if you 

look at the whole tape and what he is talking about, it is all 

about Hamas and Palestine, the Palestinian jihadists. And If 

he is saying, "We buy guns in Pakistan," I don't agree with 

Ms. Hollander that that means that he is talking about another 

issue. I think in the context of this speech he is talking 

about Hamas. And let them -- I think they can argue that that 

is not what it means, but I think the tape speaks for itself. 

MS. HOLLANDER: If we argue that is what it means, 

then we have to get into what was going on in Pakistan, which 

involves the United States surreptitiously feeding guns to 

fight the communists in Pakistan because that is what was 

happening in 1988. And it was the United States that I 

believe got him to come here. 

A lot of this is actually in a movie called Charlie 

Wilson's War that has exposed what the United States' role 

was. 

But, I mean, to avoid getting into that, they have got 

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three others. Why do they need to have four videos, five 

videos of him saying almost the same thing? Because he says 

almost the same thing on all of them. There is only one where 

he mentions Pakistan.

MR. JONAS: Your Honor, and that is the one that the 

Defendant Mohammad El-Mezain refers back to. 

THE COURT: Okay. 

MR. JONAS: And that is why we want that one in.

THE COURT: Right. She is asking can you leave out 

the references -- just that reference to Pakistan. And I 

haven't -- Without going back and seeing it, you don't think 

you can do that, or you think that changes -- 

MR. JONAS: I think it changes the meaning. I 

really don't think we should be required to do that, sir. I 

really don't.

THE COURT: And why do you think it changes the 

meaning? 

MR. JONAS: Well, look. He is obviously giving a 

military talk, talking about buying weapons and economic 

jihad. And these Defendants are trying to portray themselves 

as just a charity or helping just children and doing all of 

these good things. And clearly the fact that there is an ad 

on top of this man's speech where he is saying "Give your 

money up so we can buy weapons" goes contrary to what their 

Defense is. I think we are entitled -- 

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THE COURT: They are talking about just leaving out 

the reference to Pakistan; not weapons, just Pakistan.

MR. JONAS: Is it just this word? 

THE COURT: Or that sentence, whatever you need to 

leave out Pakistan.

MS. CADEDDU: No, Your Honor. We would oppose that 

as well, because what that does it precludes us -- it changes 

the meaning. It lets the Government put in the inference that 

these are weapons for Hamas, when in reality what they are 

talking about is the Mujahideen in Pakistan.

THE COURT: I disagree. I think the Government is 

correct that when you see the tape and listen to it, that the 

clear inference appears to be that he is talking about 

supporting the Palestinian cause. He is talking about getting 

weapons from Pakistan, but I think there is a clear link to 

what he is talking about, which is not Afghanistan. He 

doesn't mention Afghanistan or fighting communists anywhere in 

there. So I think the clear link is the way the Government 

argues it. I think that is there. 

The problem is their position is that there is another 

link and they are entitled to get into that, that there is 

another meaning to that and they are entitled to get into 

that, which of course is going to open that. 

MS. CADEDDU: Yes, sir. And we would strongly 

oppose -- if we are going to leave it in but take out 

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Pakistan, we would oppose that because that precludes us from 

making our arguments in our defense.

MS. HOLLANDER: That makes it even worse.

THE COURT: It makes it worse? So you are taking 

the position that that only means weapons for Afghanistan. 

MS. CADEDDU: I don't know that we are taking that 

position, Your Honor, but I think --

THE COURT: Why is it relevant? 

MS. CADEDDU: It is open to that interpretation 

certainly. And the Government wants to put in their 

interpretation that it is Hamas. We don't think it is that. 

And so you know, by precluding us from explaining what it was 

exactly that Azzam was getting weapons for, that eviscerates 

our defense while permitting the Government to get in an 

inference that is not warranted.

THE COURT: Well, I am not sure it is not warranted. 

From looking at the tape, I think that inference is warranted, 

in fact. And that appears that is what he is doing, unless 

there is something else that I am not seeing. Of course, you 

have it. 

MS. CADEDDU: And we can hire another expert to talk 

about Azzam and what he did and how --

THE COURT: But I don't know that that is relevant 

is the problem. The fact that he is involved in a conflict in 

Afghanistan and he is also involved in a Israeli-Palestinian 

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conflict, they don't need to come together. The issue that 

this case is about is the Israeli-Palestinian issue and Hamas' 

role in it. That is the only thing that is relevant here. 

That he may have been involved or was involved in the Afghan 

conflict really doesn't matter to the issue that is here 

before this jury.

MS. CADEDDU: Well, HE is making reference to 

Pakistan and saying "That is where you can get weapons."

THE COURT: But he is making that reference in the 

context of the Palestinian conflict.

MS. CADEDDU: But the Palestinians haven't gotten 

the weapons from Pakistan. He has. 

MR. JACKS: How does she know that? 

MS. CADEDDU: I mean, that is history. 

THE COURT: And we don't know that the Palestinians 

didn't get their weapons from here. I mean, the fact that the 

Afghans may have, that is certainly an inference -- 

MS. CADEDDU: The Government has no evidence of 

that.

THE COURT: No. But except the tape itself is 

evidence. That is an inference that you can make from the 

tape just listening to it. That is the first time I have seen 

it, and that is the inference that I draw from that. When you 

listen to all the tapes, I think that is the clear inference. 

He is there in reference to the Palestinian-Israeli conflict, 

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and that is what he is talking about, and weapons. 

I understand why the Government would want it. I was 

just trying to see if there was a way we could get you there 

without opening it up. And I don't think where you are 

wanting to go is really relevant. That is just not relevant.

Yes? 

MR. JACKS: If I could back up just a little bit and 

just focus on this article that is in this magazine, I think 

that is where we started on this discussion.

THE COURT: Well, but it is all involved. They are 

objecting to all of it--the tapes as well as the articles.

MR. JACKS: I understand. And we brought up the 

tapes to tie in the article about why the article was 

relevant. But the article says -- It talks about jihad in 

Palestine and jihad in Afghanistan, and then it goes on to 

elaborate on page 11 and talks about -- I am sorry. Probably 

the last page, 12.

THE COURT: Where there are two paragraphs? 

MR. JACKS: I am trying to find the paragraph, Your 

Honor, where he talks about that what they are doing in 

Afghanistan is a threat to Moscow. And I don't think the fact 

that he was fighting against the Soviets in Afghanistan is 

prejudicial to these Defendants. The evidence is going to 

show that he died in 1988 or 1989, so it is not going to 

translate that --

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THE COURT: That is at the -- The very last sentence 

of that last page.

MR. JACKS: Correct. So I am not sure if they are 

saying that, "Well, the fact that he fought the Soviets in 

Afghanistan is prejudicial to our clients," but --

THE COURT: No. They are wanting to get into that, 

that that is where those weapons were going for that conflict.

MS. HOLLANDER: That is part of it. No, I mean, we 

don't want to get into it. We want to keep it all out.

THE COURT: But if it comes in, you want to get into 

that.

MS. HOLLANDER: Right. And we don't want, and to 

some extent I think this is a bit of a trap for us, because 

what we don't want to get into is how he died. Now, this is 

an article about -- 

MR. JACKS: We have no intention -- 

THE COURT: Why do we need to get into how he died? 

MS. HOLLANDER: I know they are not getting into it, 

but they have also left an inference with this jury that we 

have to clear up all the time about people who are martyred or 

are suicide bombers. This guy didn't die having anything to 

do with Palestine.

MR. JACKS: And we are not getting into that.

THE COURT: You probably could do a stipulation on 

that if that is an issue of concern. 

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MR. JACKS: We weren't even going into the fact --

THE COURT: But she is saying the inference, because 

he is referred to as a martyr. And so she is saying the 

inference could be that he died as a martyr in the 

Palestinian-Israeli conflict and on behalf of Hamas, or 

something. Did I understand that correctly? 

And so just leaving it there as a martyr, that it could 

be interpreted that he was involved or died, martyred in that 

conflict. We can deal with that.

Okay. Go ahead. Mr. Jacks, anything else? 

MR. JACKS: Well, I mean -- 

THE COURT: So are you saying -- The fact that that 

is not prejudicial--and I agree that is not necessarily 

prejudicial--you want to leave it in? Is that what you are 

arguing for? 

MR. JACKS: I don't have any problem taking it out, 

Your Honor. I don't think we should have to, because this is 

their -- and I say their. The Defendants, their 

co-conspirators, this is their magazine. They chose what 

articles to put in there, or they certainly condoned it or 

approved it. So they don't want the jury to know that these 

are the kind of articles that they put in their magazine, this 

article praising this man. Well, that is too bad. You know, 

they should have been more careful about who they wrote about. 

But if the solution is to take out the references to 

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Afghanistan and black out the word, we will do that. But I 

just -- I think regardless of if these videotapes -- To me 

these videotapes just make it abundantly clear of the 

connection and the presence that Abdullah Azzam has with this 

organization, and how they regard him as such a revered 

figure. 

But setting aside these videotapes, this article is 

something they chose to put in their magazine. And this 

argument that, "Well, if you do that, that is going to open 

this door," not unless they want to open that door. And we 

have no intention of doing that. But it is really -- It seems 

like they are setting up the threat that, "Well, this is going 

to open up all this information about Afghanistan." Not from 

us it isn't.

So in summary, we will take out the references to 

Afghanistan. I think the part in the tape about Pakistan and 

Afghanistan, it came in in the first trial. It is a part of 

his speech and the context of it, and to simply cut out words 

because of the theory that the jury is going to somehow take 

that word and it is going to lead them to some thought which 

is going to lead to some other thought -- 

THE COURT: I think their argument there is that 

they want to explain their theory of what that is about, and 

that is providing weapons for the Afghanistan conflict.

MR. JACKS: There has to be some evidence of that.

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THE COURT: That is where they are wanting to go is 

present evidence. That is not where I am wanting to go. I 

don't want to get into the Afghanistan conflict.

MS. HOLLANDER: Let me make one last try here, Your 

Honor. 

THE COURT: All right. 

MS. HOLLANDER: The problem with the whole issue of 

Azzam and him coming into this case at all is trying to put 

all of us back into 1988. He was not a Hamas person. He was 

revered by the people in the Intifada because of the work he 

was doing in Pakistan fighting the communists in Afghanistan. 

The whole Muslim world was supporting this effort and the 

United States was supporting this effort to fight the Soviets 

and get them out of Afghanistan in 1988. 

And so he is a revered figure, and he is a very fiery 

figure, and he is a fighter. I mean, there is no doubt about 

that in history. That is who he was. That is how he lived. 

That is how he died. And that is who he is.

Now, we can't -- It is very hard to explain that to this 

jury and explain why it is that in 1988 or 1989 right after he 

has died that El-Mezain is saying, "Listen to Azzam. Listen 

to your brothers who are fighting the Soviets in 

Afghanistan." And it just brings all of that in a way that we 

can't explain. 

THE COURT: I don't know -- Go ahead. I will let 

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you finish.

MS. HOLLANDER: My answer to it, and my request to 

the Court, they have got lots of evidence of fiery speeches, 

is to leave Azzam out of this case so that -- for the purposes 

of not adding clearly unfair prejudice that cannot be 

explained to this jury. That is really what I am trying to 

say. 

THE COURT: Well, because I think where I disagree, 

though, with your statement is you think the explanation lies 

in explaining his role in the Afghan conflict.

MS. HOLLANDER: I think we can't. That is the 

problem.

THE COURT: I don't think you need to is the 

problem, because these tapes, I agree that they speak for 

themselves. And they are not talking about the Afghan 

conflict. Clearly he appears to support the resistance, the 

Hamas movement or the fight against Israel and the 

Palestinian-Israeli conflict. He appears to support that. 

There is no question that is what this is about. And that 

fundraising, they are using it, as the Government points out, 

OLF and contribute, it is that connection. So he is not 

talking about Afghanistan. That is maybe why he was revered 

and why they would have brought him in to influence people to 

give, but clearly he is supporting the cause in Palestine. 

MS. HOLLANDER: Right. But his talk about weapons, 

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I mean, we have it up here, the words, it says, "We buy the 

rocket that destroys a tank. We buy it in Pakistan." And the 

jury is not going to get that reference that he is talking 

then about his personal position, his situation.

THE COURT: But then he leads that into donating.

MS. CADEDDU: May I read it, Your Honor? It says -- 

He says, "This is your preparation and this is your best 

provision. O children of Palestine, the opportunity to be 

trained on all types of weapons is open and golden." The 

opportunity to be trained. "So do not let it pass. By God, O 

brothers, we buy the RPG rocket that destroys a tank from the 

tribes region in Pakistan for $5 for 100 rupees. It is 

costing the weapon factories $500." And then he goes on to 

talk about the prices. And what he is saying is, "Don't you 

lose the opportunity. We are buying this stuff in Pakistan." 

And I think that that inference comes from the text of what he 

is saying, and I think we are entitled to explore that. 

THE COURT: But why is that relevant? The issue 

here before the jury is the Hamas role in the 

Israeli-Palestinian conflict. And this tape, as I heard it, 

he may have made that statement, but it is ultimately 

encouraging the individuals to give money so that they can buy 

weapons for the Israeli-Palestinian conflict; not for 

Afghanistan. He is not raising money for Afghanistan. 

Nothing in the tape even suggests that that is why he is 

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there, or that they are using that talk to raise money for 

Afghanistan. It is to raise money for what the for the 

Israeli-Palestinian conflict, so don't lose the opportunity to 

buy these weapons. That is still the way I see it. I don't 

think that changes -- that somehow this transforms it into 

this is for Afghanistan.

MS. CADEDDU: No. The problem here, though, is that 

this leaves the jury -- This is why the Government is 

struggling so hard to get it in. What they are going to leave 

out there is this guy is buying weapons for Hamas at all these 

different prices. He is not. He is buying weapons for the 

Mujahideen. So that inference I think is very confusing to 

the jury. And if you asked my normal person when they read 

this, they are going to think that he is saying "We buy it" 

means "We buy it for Hamas." He is not he is saying, "You go 

buy it. We buy it for the Mujahideen for this price." 

And so it leaves the jury with this idea that Hamas is 

out there buying RPG rockets and this in 1989, when what he is 

talking about is the Mujahideen in Afghanistan. 

THE COURT: Mr. Jonas, any other final thoughts? 

MR. JONAS: Your Honor, that is their opinion. I 

think the tape speaks for itself.

THE COURT: That is the problem. That is their 

opinion. And that is what they are saying--you have yours and 

they have theirs, and they want to express theirs to the jury.

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MR. JONAS: And we are just looking to play this 

tape, and Your Honor heard it, and it is clearly about Hamas.

THE COURT: And I agree. That is certainly what it 

sounds like to me.

MR. JONAS: And then these Defendants and the 

co-conspirators took this speech, slapped their ad on it, and 

used it to get people to send them money. It is as simple as 

that. We should not have to redact any of it. They shouldn't 

have done that if they were concerned about what this man was 

saying and what he was talking about. 

THE COURT: Well, I am not having a problem with 

letting that in as far as that. I am trying to keep where we 

are not opening up other areas or not opening it up too much. 

If it comes in -- And as I stated, I am inclined to let it in. 

I haven't made the final ruling yet. I still want to think 

about it some more after having heard the arguments. But if I 

let it in, are you going to want the redactions of 

Afghanistan.

MS. CADEDDU: No, Your Honor. 

THE COURT: The references to Afghanistan and the 

communist agents of Moscow and -- 

MS. CADEDDU: Are we talking about the Illa 

Falistine now, Your Honor? I have lost track. 

THE COURT: Yes.

MS. HOLLANDER: I think we want that article, that 

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they don't need at all, out, that article out.

THE COURT: I understand that. But I am saying if I 

let it in.

MS. HOLLANDER: I would have to look at it and see.

THE COURT: Because at one time you were making 

references, and you underlined, the copy you gave me, the 

references to Afghanistan because you were saying didn't want 

that in.

MS. HOLLANDER: I was saying that that is why that 

article concerned me. I was saying I really don't want that 

article in. At the end, that last part just above the ad, not 

the article but the next page, it does make a reference to it, 

but it doesn't make as much of a reference as the article. 

And I was suggesting as an alternative or as a compromise that 

they leave the article out. Because what they said -- 

THE COURT: You are still not answering the 

question. If I let the article in, are you going to want to 

eliminate or redact those references to Afghanistan or leave 

them in? Or do you want to think about it? 

MS. HOLLANDER: I don't think I want to redact them 

if it comes in.

THE COURT: Okay. So if it comes in, leave it as 

is. And then you are going to want to get into explaining -- 

MS. HOLLANDER: We may on cross. We may. We will 

have to think about it.

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THE COURT: Sure. 

MR. JONAS: Your Honor, just for your information, 

if this is a path that we are going to go down about 

explaining Afghanistan, my understanding of Abdullah Azzam is 

that he was -- I don't know what word to use. A cohort, an 

ally of Osama bin Laden, and that is the path we are going to 

end up going down.

MS. HOLLANDER: And that is the trap, and that in 

fact is the trap the Government is trying to put us into, Your 

Honor.

MR. JONAS: We are not trying to put them in any 

trap, Your Honor. These videos speak for themselves. They 

are trying to create the illusion of the trap in order to keep 

them out. 

Ms. Hollander keeps referencing the Government has plenty 

of evidence and other videotapes. If she is willing to 

concede that the Government has enough evidence to prove her 

client guilty beyond a reasonable doubt, we will take that 

concession. 

THE COURT: I am sure she would, but I am sure she 

is not.

MR. JONAS: I am sure she is not also, so that is 

why we want to put on our case. 

THE COURT: Okay. 

MS. HOLLANDER: I don't have anything else.

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THE COURT: I think we have exhausted the issue.

Are there any other issues that we need to address? 

And I will get back with you, if not later this 

afternoon, then certainly by in the morning.

MR. CLINE: I just had a couple of procedural things 

I wanted to briefly touch on. 

One is we may have already said this, but if we haven't I 

want to make it clear, that an objection for one Defendant 

will be treated as an objection for all Defendants? 

THE COURT: Yes. I think we stated that.

MR. CLINE: The second thing, there have been a 

number of requests throughout the trial so far, and I am sure 

there will be a flurry of additional ones, for limiting 

instructions of one kind or another. 

It occurred to me that it might not be a bad idea for us 

to plan on at the end of the Government's case filing a sort 

of omnibus pleading that lays out the limiting instructions 

that we are requesting for the various items of Government 

evidence. Would that be -- 

THE COURT: That would be helpful, sure. 

MR. CLINE: And that way, if it is all right with 

the Court, that way we will not have to keep requesting 

particular limiting instructions every time a piece of 

evidence comes in.

THE COURT: And I haven't ruled on any but one where 

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there was agreement. Other than that I think I have withheld 

ruling because I don't feel like I am in a position to make 

those kinds of decisions as to whether or not those statements 

should be limited to a Defendant or a broader import as the 

Government is arguing.

MR. CLINE: And that is part of the reason that it 

struck me this might be the best way to go. We can just give 

you a list of the ones we are requesting.

THE COURT: That would be helpful. All right.

I will get back with you either later this afternoon or 

in the morning on that issue.

And then before you start your cross, if I let the tapes 

in and the article in, before you get into anything beyond the 

Israeli-Palestinian conflict, be sure your approach the bench.

MS. HOLLANDER: Of course, Your Honor. 

THE COURT: One last issue. Did we deal with the 

editorial? 

MR. JONAS: I am sorry, Your Honor.

THE COURT: You had a supporting tape? 

MR. JONAS: I forgot about that. 

MR. JACKS: Your Honor, what was the date of the 

editorial? 

THE COURT: It had to be in '95 or '96. It was 

after he was arrested in New York, which I think you stated 

was maybe March of '95.

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MR. CLINE: August of '95.

MR. JONAS: The exhibit list we have doesn't 

describe the content of the call, so we are trying to decide 

by the date.

THE COURT: The paper I have doesn't state a date. 

MR. JONAS: Can I just make a suggestion? 

THE COURT: Yes. 

MR. JONAS: I don't believe I am getting into this 

with Agent Burns. Can we identify the call and maybe take 

this up next time we have another meeting about this? 

THE COURT: Sure. Okay. So you are not planning on 

offering this, then, through Agent Burns at this time? 

MR. JONAS: No. 

THE COURT: All right. 

MR. JONAS: We plan on offering it later on.

THE COURT: All right. 

MR. JACKS: Your Honor, when we determine which 

conversation and which exhibit it is, we will just email you 

and you can look at the transcript of the call on our exhibit 

list.

THE COURT: Okay. That would be good. And then let 

them know and we can then take up the objections after I have 

had a chance to look at it. 

I have read the editorial, but you have a conversation 

that you say references it, and that is what I wanted to hear 

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before I made a ruling on it. 

And I think -- Is your position that it all stays out, or 

were you just wanting some of it out? 

MS. HOLLANDER: I think it is Mr. Elashi's 

conversation, is it not? 

MR. CLINE: It involves him, but we are not sure who 

the other parties are.

MR. JONAS: It is the Defendant Shukri Baker.

MS. HOLLANDER: We need to take a look at it.

THE COURT: Once you get that from the Government, 

take a look and we will consider it then. 

Anything else while we are here this afternoon.

MR. CLINE: Not from the Defendants. 

(Discussion between the Court and the court 

reporter.)

THE COURT: This is what Doctor Levitt says in his 

testimony. I think the question was, "And finally Abdullah 

Azzam?" 

And his answer, "Abdullah Azzam is a Palestinian and a 

kind of spiritual figurehead that Hamas looks up to. He has 

been -- he fought against the Soviets in the war in 

Afghanistan and is seen by Hamas as a figure to look up to. 

Question: "Is he still alive today?" 

Answer: "He is not." 

And then question, "What year did he die?" 

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And the answer, "It was mid 1980s, maybe 1985." 

And then they went on to something else, and so that is 

what has come out. 

MR. JACKS: I think he corrected himself.

MS. HOLLANDER: He did.

THE COURT: And historically it was 1989? 

MS. HOLLANDER: It was '88 I think when he died, and 

I know that Levitt did correct himself later and say it may 

have been a few years later.

THE COURT: Okay. All right. 

MR. JACKS: Judge, that conversation is Baker 

Wiretap No. 37, the conversation about the editorial.

THE COURT: Okay. Baker Wiretap No. 37. Okay. I 

will take a look at that. 

Any other issues we need to address while we are here? 

MS. HOLLANDER: I just need to talk to you about a 

funding issue very briefly.

THE COURT: Anything else we need to get on the 

record? 

MS. HOLLANDER: No.

THE COURT: We are adjourned, then, until 9:00 

Thursday morning.

(End of day.)

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I HEREBY CERTIFY THAT THE FOREGOING IS A 

CORRECT TRANSCRIPT FROM THE RECORD OF 

PROCEEDINGS IN THE ABOVE-ENTITLED MATTER. 

I FURTHER CERTIFY THAT THE TRANSCRIPT FEES 

FORMAT COMPLY WITH THOSE PRESCRIBED BY THE 

COURT AND THE JUDICIAL CONFERENCE OF THE 

UNITED STATES.

S/Shawn McRoberts 06/04/2009

__________________________DATE____________

SHAWN McROBERTS, RMR, CRR

FEDERAL OFFICIAL COURT REPORTER

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