Holy Land Foundation corporate entity appeal

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Case: 09-10560 Document: 00511268197 Page: 1 Date Filed: 10/19/2010

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 09-10560 UNITED STATES OF AMERICA, Plaintiff – Appellee v.
MOHAMMAD EL-MEZAIN; GHASSAN ELASHI; SHUKRI ABU BAKER; MUFID ABDULQADER; ABDULRAHMAN ODEH; HOLY LAND FOUNDATION FOR RELIEF AND DEVELOPMENT, also known as HLF,

Defendants – Appellants Consolidated with No. 08-10664 UNITED STATES OF AMERICA, Plaintiff – Appellee v.
SHUKRI ABU BAKER; MOHAMMAD EL-MEZAIN; GHASSAN ELASHI; MUFID ABDULQADER; ABULRAHMAN ODEH,

Defendants – Appellants Consolidated with No. 08-10774 UNITED STATES OF AMERICA, Plaintiff – Appellee v. MOHAMMAD EL-MEZAIN, Defendant – Appellant Consolidated with No. 10-10590 UNITED STATES OF AMERICA, Plaintiff – Appellee – Cross-Appellant v. HOLY LAND FOUNDATION FOR RELIEF AND DEVELOPMENT, also known as HLF, Defendant – Appellant – Cross-Appellee

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Consolidated with No. 10-10586 UNITED STATES OF AMERICA, Plaintiff v. SHUKRI ABU BAKER, Defendant NANCY HOLLANDER, Appellant APPEAL FROM THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION HONORABLE JORGE SOLIS, DISTRICT JUDGE No. 3:04-CR-240-P BRIEF FOR DEFENDANT-APPELLANT-CROSS-APPELLEE, HOLY LAND FOUNDATION FOR RELIEF AND DEVELOPMENT

KRISTINE A. HUSKEY Texas Bar No. 24002328 Email: [email protected] RANJANA NATARAJAN Texas Bar No. 24071013 H. MELISSA MATHER Texas Bar No. 24010216 On the Brief: Rachel Anne Fletcher, Law Student Jonathan Chaltain, Law Student John Rhoads, Law Student DATED: October 19, 2010

NATIONAL SECURITY CLINIC UNIVERSITY OF TEXAS SCHOOL OF LAW 727 East Dean Keeton St. Austin, TX 78705 Tel: 512-232-2698 Fax: 512-232-0800

ATTORNEYS FOR DEFENDANTAPPELLANT-CROSS-APPELLEE, HOLY LAND FOUNDATION FOR RELIEF AND DEVELOPMENT

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CERTIFICATE OF INTERESTED PERSONS

No. 09-10560 United States of America v. Holy Land Foundation For Relief and Development, also known as HLF The undersigned counsel of record for Holy Land Foundation for Relief and Development, also known as HLF, certifies that the following listed persons and entities as described in the fourth sentence of Rule 28.2.1 have an interest in the outcome of this case. These representations are made in order that the judges of this Court may evaluate possible disqualification or recusal. 1. United States of America. 2. Abdulqader, Mufid 3. Abu Baker, Shukri 4. Boyd, John W. 5. Cadeddu, Marlo 6. Cline, John D. 7. Cowger, Susan 8. Dratel, Joshua L. 9. Duncan, Theresa M. 10. El-Mezain, Mohammad 11. Hollander, Nancy 12. Holy Land Foundation for Relief and Development 13. Huskey, Kristine 14. Jacks, James 15. Jonas, Barry 16. Junker, Walt 17. Mather, H. Melissa 18. Moreno, Linda i

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19. Mysliwiec, Aaron 20. Natarajan, Ranjana 21. National Security Clinic, University of Texas School of Law 22. Odeh, Abdulrahman 23. Office of United States Attorney, Northern District of Texas 24. Palmer, Joseph F. 25. Shapiro, Elizabeth 26. Solis, Honorable Jorge 27. Tigar, Michael 28. Westfall, Gregory B. Dated: October 19, 2010 Respectfully submitted, /s/ Kristine A. Huskey

KRISTINE A. HUSKEY NATIONAL SECURITY CLINIC UNIVERSITY OF TEXAS SCHOOL OF LAW 727 East Dean Keeton St. Austin, TX 78705 Tel: 512-232-2698 Attorney for Defendant-Appellant-CrossAppellee, HOLY LAND FOUNDATION FOR RELIEF AND DEVELOPMENT, also known as HLF

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REQUEST FOR ORAL ARGUMENT

The defendant-appellant-cross-appellee, HOLY LAND FOUNDATION FOR RELIEF AND DEVELOPMENT, also known as HLF, respectfully requests oral argument. This appeal comes to the Court after two lengthy trials that have generated a lengthy record and a number of constitutional issues. Oral argument will assist the Court in addressing the intricacies of the record and the nuances of the controlling law. Oral discussion of the facts and the applicable precedent would benefit the Court.

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TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS ........................................................ i  REQUEST FOR ORAL ARGUMENT ................................................................... iii  TABLE OF CONTENTS ......................................................................................... iv  TABLE OF CITATIONS ........................................................................................ vi  STATEMENT OF JURISDICTION..........................................................................1  STATEMENT OF THE ISSUES...............................................................................2  STATEMENT OF THE CASE ..................................................................................4  STATEMENT OF THE FACTS ...............................................................................6  SUMMARY OF THE ARGUMENT ......................................................................19  ARGUMENT ...........................................................................................................21  I.  HLF’S SIXTH AMENDMENT RIGHT TO COUNSEL WAS VIOLATED WHEN IT WAS TRIED, CONVICTED, AND SENTENCED WITHOUT LEGAL REPRESENTATION ......................................................................21  A.  Corporations Have a Sixth Amendment Right to Counsel and Denial of that Right Requires Reversal ....................................................................21  B.  HLF was Convicted and Sentenced Without Counsel and Therefore its Trial is Void ..............................................................................................23  C.  The Conclusions Set Forth in the May 24, 2010 Order Do Not Remedy the Violation of HLF’s Sixth Amendment Right to Counsel.........................27  1.  HLF’s Interests Were Not “Adequately Represented” .........................28  2.  There is no Legal Basis for a Finding of “De Facto” Legal Representation ......................................................................................36  II.  EVEN IF HLF HAD “DE FACTO” LEGAL REPRESENTATION, ITS SIXTH AMENDMENT RIGHTS WERE STILL VIOLATED ...................43  A.  The Failure to Conduct a Rule 44 Inquiry Violated HLF’s Sixth Amendment Right to Conflict-Free Counsel ...........................................44  B.  HLF’s “De Facto” Legal Representation Was Ineffective and Violated HLF’s Right to Effective Assistance of Counsel .....................................50  III.  HLF’S SIXTH AMENDMENT RIGHT UNDER THE CONFRONTATION CLAUSE WAS VIOLATED WHEN IT WAS TRIED, CONVICTED, AND iv

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SENTENCED WITHOUT LEGAL REPRESENTATION ..........................55  IV.  V.  HLF’S DUE PROCESS RIGHTS WERE VIOLATED WHEN IT WAS TRIED, CONVICTED, AND SENTENCED IN ABSENTIA .....................58  HLF WAS DENIED ITS RIGHTS UNDER FEDERAL RULE OF CRIMINAL PROCEDURE 43 TO BE PRESENT AT CRITICAL STAGES OF ITS TRIAL WHEN IT WAS NOT REPRESENTED BY COUNSEL ..60  A.  HLF’s Rule 43 Rights Were Violated when it Was Not Present at Trial Because It Was Not Represented by Counsel ..........................................61  B.  The Denial of HLF’s Rule 43 Rights Was Not Harmless Error ..............62  VI.  IN THE ALTERNATIVE, HLF IS ENTITLED TO REVERSAL BASED ON THE ARGUMENTS RAISED BY CO-DEFENDANTS-APPELLANTS BAKER, ELASHI, AND ABDULQADER ..................................................63 

CONCLUSION ........................................................................................................64  CERTIFICATE OF SERVICE ................................................................................66  CERTIFICATE OF COMPLIANCE .......................................................................67 

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TABLE OF CITATIONS

Cases  104 F.3d 566, 568 (3d Cir. 1996).......................................................... 42, 43, 44, 52 315 F.3d 491, 492(5th Cir. 2002) ............................................................................59 443 F.3d 180, 184 (2d Cir. 2006)...................................................................... 45, 46 Aerojet-General Corp. v. Askew, 511 F.2d 710, 719 (5th Cir. 1975) ......................39 Baty v. Balkcom, 661 F.2d 391, 395 (5th Cir. 1981) ........................................ 51, 54 Bisson v. Howard, 224 F.2d 586, 588 (5th Cir. 1955) ...................................... 24, 27 Boim v. Quranic Literacy Ins., 340 F.Supp.2d 885, 897 (N.D.Ill. 2004) ................37 Brecht v. Abrahamson, 507 U.S. 619, 634–37 (1993) .............................................63 Brooks v. Tennessee, 406 U.S. 604, 612–13 (1972) ................................................23 Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001) .......................................... passim Campbell v. United States, 122 U.S.App.D.C. 143 (1965) .....................................50 Capital Parks, Inc. v. Southeastern Advertising & Sales System, Inc., 30 F3d 627 (5th Cir. 1994) ......................................................................................................41 Carty v. Thaler, 583 F.3d 244, 245 (5th Cir. 2009) .................................................57 Crawford v. Washington, 541 U.S. 36, 63–64 (2004) .............................................61 Cuyler v. Sullivan, 446 U.S. 335, 348 (1980) ................................................... 48, 50 Davis v. Alaska, 415 U.S. 308, 317 (1974) ....................................................... 62, 63 vi

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Donovan v. Road Rangers Country Junction, Inc., 736 F.2d 1004, 1005 (5th Cir. 1984) ....................................................................................................................67 Faretta v. California, 422 U.S. 806, 807 (1975) .....................................................22 Ferguson v. Georgia, 365 U.S. 570, 595–96 (1961) ...............................................23 Ferguson v. United States, 329 F.3d 923, 924 (10th Cir. 1964)....................... 62, 63 Fong Foo v. United States, 369 U.S. 141, 143 (1962) ............................................66 Freeman v. Lester Coggins Trucking, Inc., 771 F.2d 860 (5th Cir. 1985) ..............39 Geders v. U.S., 425 U.S. 80, 92 (1976) ...................................................................23 Gideon v. Wainwright, 372 U.S. 335 (1963) ...........................................................21 Glasser v. United States, 315 U.S. 60, 76 (1932) ................................. 22, 30, 39, 49 Green v. Johnson, 116 F.3d 1115, 1124 (5th Cir. 1997) .................................. 66, 68 Hamilton v. Alabama, 386 U.S. 52, 55 (1961) ........................................................23 Harris v. Day, 226 F.3d 361, 364 (5th Cir. 2000) ...................................................56 Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 412–14 (1984) ..............................................................................................................................66 Herring v. New York, 422 U.S. 853, 864–65 (1975) ........................................ 23, 58 Holy Land Foundation for Relief and Development v. Ashcroft, 219 F.Supp.2d 57 (D.D.C. 2002).......................................................................................................37 Holy Land Foundation for Relief and Development v. Ashcroft, 333 F.3d 156 (D.C. vii

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Cir. 2003) .............................................................................................................10 Id. .............................................................................................................................44 In Re Grand Jury Proceedings, 469 F.3d 24, 26 (1st Cir. 2006) ............................52 Kentucky v. Stincer, 482 U.S. 730, 745 (1987)........................................................65 Kittelson v. Dretke, 426 F.3d 306, 318 (5th Cir. 2005) .................................... 61, 62 Mancorp, Inc. v. Culpepper, 802 S.W.2d 226 (Tex 1990) ......................................41 Messing v. FDI, Inc., 439 F.Supp. 776, 782 (N.D.J. 1977) .....................................52 Mickens v. Taylor, 535 U.S. 162, 172 (2002) ..........................................................51 Nat’l Dairy Prods. Corp. v. United States, 350 F.2d 321, 327 (8th Cir. 1965) ......29 Pointer v. Texas, 380 U.S. 400, 405 (1965)...................................................... 65, 68 Powell v. Alabama, 287 U.S. 45, 69 (1932) ............................................................58 Rowland v. California Men’s Colony, 506 U.S. 194, 202 (1993) .................... 62, 67 S.A.F.E. Export Co. v. United States, 803 F.2d 696, 700 (Fed. Cir. 1986) .............66 Southwest Exp. Co., Inc. v. I.C.C., 670 F.2d 53, 55–56 (5th Cir. 1982) .................67 Standard Oil Co. of Tex. V. United States, 307 F.2d 120, 127 (5th Cir. 1962) .......53 Standard Oil of Tex. v. U.S., 307 F.2d 120 (5th Cir. 1962) .....................................32 Strickland v. Washington, 466 U.S. 668, 692 (1994) ...................................... passim Taylor v. Sturgell, 128 S.Ct. 2161, 2173-74 (2004) ................................................39 United States ex rel. Hard v. Davenport, 478 F.2d 203, 211 (3rd Cir. 1972) .........49 viii

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United States v. Alikpo, 944 F.2d 206, 211 (5th Cir. 1991) ............................. 69, 71 United States v. Beltran-Nunez, 716 F.2d 287, 288–90 (5th Cir. 1983)..................70 United States v. Benavides, 596 F.2d 137, 139–40 (5th Cir. 1979) ........................70 United States v. Bigelow, 462 F.3d 378, 380–81 (5th Cir. 2006) ..................... 65, 68 United States v. Cronic, 466 U.S. 648, 649 (1984) .............................. 22, 27, 56, 57 United States v. Empire Packing Co., 174 F.2d 16, 20 (7th Cir. 1949) ..................29 United States v. Gagnon, 470 U.S. 522, 526-27 (1985) ..........................................65 United States v. Gallgher, 856 F.Supp. 295, 299 (E.D.Va. 1994) ..........................29 United States v. Holy Land Foundation, et al., No 09-10560 (5th Cir. Jul. 22, 2009) ................................................................................................................................4 United States v. Infante, 404 F.3d 376, 392 (5th Cir. 2005)....................................54 United States v. Jimenez, 464 F.3d 555, 559 (5th Cir. 2006) ........................... 61, 63 United States v. Lachman, 521 F.3d 12, 21 (1st Cir. 2008).....................................51 United States v. Lyons, 703 F.2d 815, 820–821 (5th Cir. 1983) .............................51 United States v. Novak, 903 F.2d 883, 891 (2d Cir. 1990) ......................................44 United States v. Salado, 339. F.3d 285, 291 (5th Cir. 2003) ...................................51 United States v. Thevis, 665 F.2d 616, 645 n.35 (5th Cir. 1982) ............... 21, 40, 61 United States v. Unimex, Inc., 991 F.2d 546 (9th Cir. 1993)............................. 22, 27 United States v. Wyly, 193 F.3d 289, 302 (5th Cir. 1999) .......................................29 ix

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United States. v. DeBerry 487 F.2d 488 (2nd Cir. 1973) ........................................50 Walker v. Financial Corp. of America, 828 F.2d 579, 584 (9th Cir. 1987) .............60 White v. Maryland, 373 U.S. 59, 60 (1963) (per curiam) .......................................23 Williams v. Kaiser, 323 U.S. 471, 475–476 (1945) .................................................23 Young v. Herring, 938 F.2d, 543, 557 (5th Cir. 1991) ............................................69 Statutes  18 U.S.C. § 2339B(a)(1) ..........................................................................................11 Rules  Campbell v. United States, 122 U.S.App.D.C. 143 (1965) .....................................50 Fed. Crim. Pro. R. 44(c)(2) ......................................................................................49 Fed. R. Crim. P. 43(a)(1)–(3) ...................................................................................69 Fed. R. Evid. 804(b)(6) ............................................................................................61 United States ex rel. Hard v. Davenport, 478 F.2d 203, 211 (3rd Cir. 1972) .........50 United States. v. DeBerry 487 F.2d 488 (2nd Cir. 1973) ........................................50 Treatises  1 Fletcher Cyc. Corp. § 41.10 ........................................................................... 41, 42 1 Fletcher Cyc. Corp. § 43.70 ..................................................................................42 104 F.3d 566, 568 (3d Cir. 1996)................................................................ 43, 44, 52 18 C.J.S. Corporations § 14 .....................................................................................41 x

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18 C.J.S. Corporations § 17 .....................................................................................41 4 Joel Androphy, White Collar Crime § 41:38 (2d ed., 2010), (“Proposed Jury Instructions for Defendant”) ................................................................................55 443 F.3d 180, 184 (2d Cir. 2006)...................................................................... 45, 46 Harris v. Day, 226 F.3d 361, 364 (5th Cir. 2000) ...................................................56 Id. .............................................................................................................................44 United States v. Novak, 903 F.2d 883, 891 (2d Cir. 1990) ......................................44 Treatise  1 Joel Androphy, White Collar Crime §3.5 (2d. ed, 2010) (“Criminal Liability of the Corporation”); ............................................................................................... 32, 53 Aerojet-General Corp. v. Askew, 511 F.2d 710, 719 (5th Cir. 1975) ......................39 Freeman v. Lester Coggins Trucking, Inc., 771 F.2d 860 (5th Cir. 1985) ..............39 Leslie Eaton, No Convictions in Trial Against Muslim Charity, N.Y. TIMES, Oct. 22, 2007 ......................................................................................................................38 President George W. Bush, Remarks by the President on Financial Fight Against Terror (Dec. 4, 2001) .............................................................................................9 Taylor v. Sturgell, 128 S.Ct. 2161, 2173-74 (2004) ................................................39

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STATEMENT OF JURISDICTION

Jurisdiction of this Court is invoked under Section 1291, Title 28, United States Code, as an appeal from a final judgment of conviction and sentence in the United States District Court for the Northern District of Texas and under Section 3742, Title 18, United States Code, as an appeal of a sentence imposed under the Sentencing Reform Act of 1984. Notice of appeal was timely filed in accordance with Rule 4(b) of the Federal Rules of Appellate Procedure. Jurisdiction in the consolidated appeal of the district court’s order dated May 24, 2010, is invoked under Section 1291, Title 28, United States Code, as an appeal from an order issued on remand. Notice of appeal was timely filed in accordance with Rule 4(b) of the Federal Rules of Appellate Procedure.

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STATEMENT OF THE ISSUES

ISSUE ONE: Whether HLF was denied the right to counsel guaranteed by the Sixth Amendment to the United States Constitution when it was tried, convicted by a jury, and sentenced without counsel. ISSUE TWO: Whether HLF was denied the right to counsel guaranteed by the Sixth Amendment because to the extent it had “de facto” legal representation, such representation was not conflict-free and was ineffective assistance of counsel. ISSUE THREE: Whether HLF was denied its rights under the Confrontation Clause of the Sixth Amendment when it was tried and convicted by a jury without counsel. ISSUE FOUR: Whether HLF was denied its right under Rule 43 to be present under the Due Process clause of the Fifth Amendment when it was tried, convicted by a jury, and sentenced without counsel. ISSUE FIVE: Whether HLF was denied its right to be present at critical stages of its trial when it was not represented by counsel and had no corporate representative present. 2

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ISSUE SIX: Whether in the alternative HLF is entitled to reversal based on the arguments raised by co-defendant-appellants.

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STATEMENT OF THE CASE

The Holy Land Foundation for Relief and Development (“HLF”) adopts the Statement of the Case set forth in Defendant-Appellant Elashi’s opening brief, which correctly sets out the dates of indictment, trial, and conviction of all defendants. The Holy Land Foundation adds that on July 20, 2007, the fifth day of voir dire at the first trial, its counsel withdrew from representing the Holy Land Foundation, and from that day forward through the remainder of the first trial, the entirety of the second trial, and sentencing, no counsel entered an appearance on behalf of HLF. 4 R.1590–1593 [Voir Dire Vol. 5 at 1013-1016] 7 R.9789–9793 [HLF sentencing transcript]. HLF’s notice of appeal was timely filed on June 5, 2009. 3 R.7399–7400 (R. Exc. Tab 6 at 1–2). On June 12, 2009, the Government moved in the district court to strike the notice of appeal, and subsequently moved in this Court for a remand of the case to the district court for an evidentiary hearing. 3 R.7401–7407; United States v. Holy Land Foundation, et al., No 09-10560 (5th Cir. Jul. 22, 2009). On September 24, 2009, this Court granted the Government’s request for a remand, ordering the district court to determine (1) whether HLF was represented at trial, (2) whether Ranjana Natarajan of the National Security Clinic had the authority to 4

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represent HLF in its appeal, and (3) the corporate status of HLF at all relevant times. 3 R.7765–7766. The district court held the ordered evidentiary hearing on January 12, 2010. txnd-138723[1] R.170–419 (R. Exc. Tab 5 at 16–18). On May 24, 2010, the District Court issued a written order (the “May 24 Order”), in which the Court determined that HLF had been “de facto” represented by its co-defendants’ counsel and “exercise[d] its inherent authority” to appoint counsel for HLF, ordering that this appointment relates back to the date that the notice of appeal was filed. txnd-138723[1] R.156–158 (R. Exc. Tab 7 at 1). On June 7, 2010, HLF filed a

timely notice of appeal regarding certain determinations by the district court in the May 24 Order. txnd-13872[1] R.165. The Government has also filed a separate appeal of that order, which will be briefed separately. Supp. Holyland R.187–188 and HLF will address those arguments as a cross-appellee. On August 6, 2010, this Court consolidated the related appeals. Supp. Holyland R.190–192.

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STATEMENT OF THE FACTS

The Holy Land Foundation for Relief and Development (“HLF”) adopts the Statement of Facts as set forth by Defendant-Appellant Elashi in his opening brief to the extent that it discusses the general history of the Israeli-Palestinian conflict and HLF’s charitable activities related to individuals affected by that conflict. HLF adds the following context regarding its history as an organization and its efforts to comply with the law once Hamas was designated as a terrorist organization in 1995. Assertions in this statement cite to the Record on Appeal (ROA)1 wherever possible, but also rely on other publicly available sources, as without counsel to act on its behalf, many facts specifically relevant to HLF were not developed below. From its founding in 1989 until it was shut down in December 2001, HLF was an American charitable foundation that worked to foster peace and that opposed terrorism in any form. Originally incorporated as a non-profit charity under the laws of California, HLF’s principal place of business for most of its existence was in

1 Citations to the record on appeal ("R.") are in the following format: The first number represents the "Holyland" folder number in the electronic record provided to counsel. The second number represents the "USCA5" number in the lower right-hand corner of each page of the electronic record.

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Richardson, Texas, where it moved in 1992 along with its co-founders, Shukri Abu Baker and Ghassan Elashi. 4 R.4189–4200. Throughout the 1990’s, HLF gained in stature and donations, eventually becoming the largest Muslim charity in the United States, with satellite offices in California, Illinois and New Jersey. 4 R.4189–4196. In the year prior to its

closure, HLF had collected over $13 million in donations to support its charitable work for needy people throughout the world, including most prominently the Palestinian people living under Israeli occupation in Gaza and the West Bank. Id. Additional projects, unrelated to conditions in the occupied territories, included organizing aid to victims of the September 11, 2001 terrorist attacks, providing assistance to victims and relief workers at the Oklahoma City bombing site, and to victims of natural disasters around the globe. See 4 R.4660. Much of the charity that HLF provided was through “zakat committees,” which are essentially non-S organizations designed to collect and distribute “zakat,” which is a type of tithe or religious donation expected of all Muslims. 4 R.3826–3827. While some zakat committees were designated by the United States, at no time did HLF give to any zakat committee designated as being a terrorist organization. 4 R.3587; 7 R.9279–9294 (discussing his knowledge of various zakat

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committees, their connections to Hamas, and charitable organizations that were designated because of these connections). In 1994, the FBI became interested in HLF’s funding activities, and began wiretapping its offices pursuant to warrants issued under the Foreign Intelligence Surveillance Act (FISA). 4 R.4182–4184. Phones in HLF’s offices in Texas, California, Illinois and New Jersey were bugged, as were the personal phone lines of some of its officers and directors. Id. Some of the evidence in the underlying criminal trial came from these wiretaps, and covered activity well before the United States criminalized the allegedly illegal activities in this case. Id. In 1995, Hamas—which, at that time, was a functioning political party in the occupied territories—was formally designated a “specially designated terrorist” (SDT), essentially making it a crime for any person in the United States to fund that organization in any way. 7 R.7311. As covered more fully in Defendant-Appellant Elashi’s statement of facts, following the designation, many Muslim leaders, including representatives of HLF, met with officials from various U.S. agencies, in order to discuss how they could continue to provide charity to the Palestinian people without running afoul of the new prohibitions. 7 R.7296–7299. In essence, HLF asked for a “white list” of organizations that the U.S. Government had found to be legitimate, and who could 8

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legally receive donations, but Government officials refused to provide such a list. Id. HLF continued to provide assistance only to the organizations, including zakat committees, that were not designated by the Government on any lists of confirmed or suspected terrorists. Despite these efforts, an early morning raid occurred on the offices of HLF, in which government agents entered HLF’s headquarters in Richardson, Texas, as well as its satellite offices in California, Illinois and New Jersey, and shut down the entire enterprise, seizing property and freezing its assets. 4 R.4185–4186. At public remarks in the Rose Garden later that morning, on December 4, 2001, President Bush announced the raid, adding: “I am confident that most of the donors to the Holy Land Foundation, and perhaps even some of the individuals who are associated with the Foundation, had no idea how its money was being used. They wanted to relive suffering in the region of the world that has suffered too much. But the facts are clear, the terrorists benefit from the Holy Land Foundation. And we're not going to allow it.” President George W. Bush, Remarks by the President on Financial Fight

Against Terror (Dec. 4, 2001) available at http://georgewbush-whitehouse.archives.gov/news/releases/2001/12/20011204-8.ht ml.

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Following the raid, HLF retained the law firm of Freedman Boyd to challenge the Administration’s designation of HLF as a “specially designated global terrorist” (SDGT) and the freezing of its assets under a blocking order. 3 R.7306–7307. Because its assets were now controlled by the Government, HLF had to request permission to pay its attorneys for this work through the Office of Foreign Assets Control (OFAC). The OFAC procedure for the payment of attorney’s fees generally required submission of a bill from the law firm, as well as written authorization from a corporate representative of the blocked entity, in this case HLF, asking to be permitted to pay the bill. Letters from HLF to OFAC dated throughout 2002, 2003, and 2004, show Ghassan Elashi’s signature as the corporate representative of HLF requesting payment. Ultimately, HLF’s efforts to challenge the blocking order and its designation as a SDT and a SDGT were not successful. Holy Land Foundation for Relief and Development v. Ashcroft, 333 F.3d 156 (D.C. Cir. 2003). As HLF pursued the designation litigation, the Government had convened a grand jury in Dallas, Texas, to investigate HLF, as well as several of its officers and directors, for criminal activity related to the use of HLF money in the occupied territories. 4 R.4182–4188. On July 26, 2004, the grand jury returned an indictment charging HLF and seven individuals (Shukri Abu-Baker, Mohammad 10

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El-Mezain, Ghassan Elashi, Haitham Maghawri, Akram Mishal, Mufid Abdulqader, and Abdulraham Odeh) for, among several other statutory violations, conspiring to provide and providing material support to a foreign terrorist organization, namely, Hamas, in violation of 18 U.S.C. § 2339B(a)(1). 1 R.8–47. The Government did not allege that HLF donated money specifically to Hamas, or to any entity, including zakat committees, designated by the United States as a confirmed or suspected terrorist organization, or in fact any entity, including zakat committees, that overtly proclaimed allegiance to Hamas. Rather, the Government alleged that HLF had given money to zakat committees that were operating in the occupied territories, knowing that these committees were in fact controlled by Hamas, despite the fact that the United States had not designated these committees as such. 4 R.3568–3672. In response to the indictment, HLF entered an appearance and a plea of not guilty through its attorneys at Freedman Boyd, which also entered an appearance and a plea of not guilty for Shukri Abu Baker, who as of December 2001, was the Chief Executive Officer of HLF. Separate attorneys represented the other individual defendants. When HLF sought permission from OFAC to pay its attorney fees for representation in the criminal case, OFAC denied the request and suggested that HLF set up a defense fund in order to pay its attorneys. Because 11

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corporate defendants, even if indigent, are not entitled to appointed counsel, the refusal from OFAC to pay attorney’s fees for the criminal case meant that any lawyer appearing on behalf of HLF in the criminal trial would not be paid. The record reveals no challenge from HLF’s counsel to this decision from the OFAC, either to the trial court in the criminal case, or through other executive channels. Freedman Boyd continued to represent HLF, along with Mr. Baker, throughout the pretrial proceedings leading up to the first trial, which began voir dire on July 16, 2007. Work done for Mr. Baker was billed to the Government under the procedures of the Criminal Justice Act (CJA). Work done specifically for HLF was exempted from the firm’s CJA submissions, and remained uncompensated. txnd-138723[1] R.170. The representation proceeded in this fashion through all pre-trial preparation until the second day of voir dire, July 17, 2007, when Government counsel stated that they were “concerned about the record” in the case as it related to a “conflict of interest of Shukri Abu Baker and the Holy Land Foundation being represented by the same counsel.” 4 R.1100–1103. The Government acknowledged that the defendants had signed written waivers consenting to the representation, but noted that “we’re uncomfortable that may not be enough to protect the record on conflict,”

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and “we would be more comfortable if the Court questioned the defendants on this issue.” 4 R.1101. The district court noted that Federal Rule of Criminal Procedure 44 “contemplate[s] that the Court will directly talk with the defendant about the issue of multiple representation,” although in this case, because HLF was a “defunct corporate entity,” the court was “not sure . . . who [would] be the natural person representative of it” for purposes of a Rule 44 colloquy. 4 R.1102. Counsel for the Government noted that Ghassan Elashi had signed the written waiver for HLF “a few months ago,” which counsel noted, “raises another question as to whether or not there is a conflict with doing that.” Id. at 1103. The district court asked defense counsel to address this issue, and counsel for Mr. Elashi reported to the court the following morning that his client would not be able to speak for HLF because “we don’t know either of the current status of the Holy Land Foundation, whether it exists even as an entity or Mr. Elashi’s status, if it does exist.” 4 R.1399. The court noted that this decision many have broader implications because “I’m inferring from what has been said that there is no natural person as the representative of the Holy Land Foundation who would be the client for the attorney who’s representing the Holy Land Foundation.” Id. at 1399–1400. Counsel for HLF stated simply: “That is correct at this time, Your Honor”, and the 13

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court noted that it would consider the issue further and “see what I think about advising the defendants of joint representation.” Id. at 1400. On July 20, 2007, the day that the district court was planning on introducing counsel to the venire to inquire about possible bias and/or conflicts, HLF’s counsel raised the issue again, stating: “Your Honor, all I can say is that if there is no one here to represent Holy Land since we don’t know exactly what its status is we can’t represent Holy Land.” 4 R.1590. Counsel for the Government stated that it was unsure “how we proceed when it comes to Holy Land,” but requested that the court question Mr. Baker about the joint representation. Id. at 1591. The court and counsel then engaged in some discussion about whether to question Mr. Baker when in fact HLF’s counsel had indicated that it was going to withdraw from the joint representation. Id. at 1591–1592. The discussion ended with HLF’s counsel stating: “That’s fine with us, if you don’t want to question him [Mr. Baker], your Honor, but we will withdraw from representing Holy Land at this time. Ms. Duncan and I will continue to represent Mr. Baker.” Id. at 1592. The court then moved on to discussing how to update its docket sheet so that it could correctly identify for the venire which attorney represented which defendant. With regard to HLF, the court stated: “So I guess on Holy Land, I can simply say that it is unrepresented.” Id. at 1592–1593. 14

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No further substantive discussion of how to address this situation appears in the record. After the first trial ended in a hung jury, a re-trial was scheduled. Throughout the pre-trial period of the second trial, the district court took no steps to ensure that an appropriate agent for HLF was identified and/or notified about the proceedings, or that it was represented by legal counsel. At the beginning of the retrial, before the court empaneled the jury, Government counsel stated that he “wanted to make sure that the jury is aware and that all parties are aware that the Holy Land Foundation Corporation is a Defendant and that there will be evidence in that regard,” despite the fact that “the Foundation has no employees and no officers and so there is no one to represent it.” The court responded by stating: “All right. And certainly I was aware, and I am sure you will remind the jury in your opening statements.” 4 R.3534. Once the jury was brought in, and the indictment read, the court asked each of the individual defendants to plead guilty or not guilty. After Mr. Abdulqader pled not guilty, the court explicitly entered a plea on behalf of HLF, noting for the jury that “the corporation Holy Land Foundation is also [a] named . . . Defendant, as you heard in the indictment, and we will enter a plea of not guilty for them.” Id. at 3546.

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After the verdict was issued, HLF was then sentenced without counsel. 7 R.9789–9793. Following HLF’s conviction, which was covered heavily by the media, an attorney from the National Security Clinic at the University of Texas School of Law contacted Freedman Boyd inquiring about the trial and asking if the clinic might be able to help with any appeal. At that point, HLF’s former counsel suggested to the clinic that it may be able to represent HLF, which had no attorney during the second trial. 3 R.8134. After that conversation, the clinic attempted to find a person who could act as a corporate representative for HLF, in order to make the decisions necessary to pursue an appeal—including whether to hire the clinic, whether to appeal, and what relief to pursue. Given that the Government had designated HLF as a global terrorist, and in fact convicted several of the people associated with the organization for contributing money to terrorists, HLF’s new counsel could find no person willing to speak as a representative of HLF. 3 R.8202. Despite these difficulties, counsel filed a timely notice of appeal on behalf of HLF on June 5, 2009. 3 R.7399–7400 (R. Exc. Tab 6 at 1–2). The Government subsequently moved to strike the notice of appeal, alleging that HLF had not authorized any counsel to appear on its behalf, or file a notice of appeal. 3 R.7401–7407. At the request of the Government, this Court remanded the case to the district court for an evidentiary 16

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hearing to address three issues: whether HLF was represented at trial, whether Ranjana Natarajan of the National Security Clinic at the University of Texas has the authority to represent HLF, and HLF’s corporate status at all relevant time. 3 R.7765. The district court held an evidentiary hearing on January 12, 2010 (the “Evidentiary Hearing”), in which the court heard from counsel for the Government, Ranjana Natarajan, Freedman Boyd attorneys, who represented Baker, John Cline, who represented Elashi, and two witnesses for the Government. txnd-138723[1] R.170. Testimony established that no attorney appeared on behalf of HLF after the fifth day of voir dire at the first trial, during the entirety of the second trial or during the sentencing of HLF. txnd-138723[1] R.271–273 [evidentiary hearing portion where NH withdrew]. Following the hearing, the district court entered a written order, determining that HLF’s counsel withdrew on July 20, 2007, that such withdrawal was effective, that HLF proceeded without counsel, but that HLF’s co-defendants’ counsel provided “de facto legal” representation, stating “[t]his case presents a unique situation where the unrepresented corporation was ‘de facto’ represented by its officers’ and directors’ counsel during trial.” The court also determined that it had the authority to appoint Ranjana Natarajan as pro bono counsel, and making certain 17

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findings about HLF’s corporate status. txnd-138723[1] R.145, 153, 156–158 (R. Exc. Tab 5 at 5, 13, 16–18). In addition to these findings, the district court further opined that though HLF did not have counsel, it was afforded “de facto” legal representation by counsel for Baker, Elashi, and El-Mezain on the basis that the court could disregard the corporate form, find that the three defendants were HLF’s alter ego and that their counsel adequately represented HLF’s interests. Id. at Tab 5 at16. HLF is now appealing the conviction and sentence below as well as certain findings in the May 24 Order. The Government filed a separate appeal challenging the district court’s appointment of counsel to represent HLF, and HLF will address those arguments separately as a cross-appellee in the Government’s cross-appeal.

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SUMMARY OF THE ARGUMENT

In the summer of 2007, the Holy Land Foundation (“HLF”) and several of its officers and directors were tried for various crimes, including material support for terrorism. The trial lasted almost two months, thousands of exhibits were

introduced, and the jury deliberated for nineteen days before Judge Fish declared a mistrial. The retrial began almost a year later and was an equally complex proceeding—with testimony continuing for almost sixty days, and eight days of deliberation before the jury reached a verdict. This prosecution was so complex, in fact, that it has been described as one of the largest terrorism financing case in United States history. Through all of these complex proceedings, from opening statements in the first trial, to opening statements, verdict and sentencing in the second trial, HLF stood trial with no legal counsel to represent it. The record on this point is clear, as after the fifth day of voir dire in the first trial, no pleadings were filed on behalf of HLF, no one attended jury impanelment on behalf of HLF, no opening or closing argument was made on behalf of HLF, no one cross-examined witnesses or presented evidence on behalf of HLF, and no one was present for HLF when it was sentenced. In a case of this magnitude, with HLF facing thirty-two criminal counts 19

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relating to terrorism and money laundering, it is inconceivable that a conviction could be allowed to stand after a trial in which HLF had no legal representation. Moreover, the district court’s recent determinations issued upon remand do not remedy the fundamental violation of HLF’s Sixth Amendment and Due Process rights that occurred. HLF—a charitable organization—cannot have been “adequately represented” by counsel to its co-defendants, who were the organization’s officers and directors and with whom HLF had clear conflicts of interest. The courts of the United States do not force criminal defendants—even corporate defendants—to stand trial in absentia with no counsel. A conviction obtained in this manner violates basic constitutional principles that are the bedrock of our criminal justice system. The Holy Land Foundation respectfully requests that its conviction be vacated and the case remanded so that HLF may proceed with appropriate legal representation.

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ARGUMENT

I.

HLF’S SIXTH AMENDMENT RIGHT TO COUNSEL WAS VIOLATED WHEN IT WAS TRIED, CONVICTED, AND SENTENCED WITHOUT LEGAL REPRESENTATION HLF was charged with thirty-two counts of criminal statute violations,

including two counts involving “material support for terrorism.” Despite the seriousness of the charges, HLF faced two criminal trials and was sentenced without any legal representation, in blatant violation of its right to counsel under the Sixth Amendment. The district court’s unprecedented finding that HLF had “de facto” legal representation does not remedy this fundamental Constitutional error. Accordingly, reversal is required here. A. Corporations Have a Sixth Amendment Right to Counsel and Denial of that Right Requires Reversal

All criminal defendants, including corporate criminal defendants, have a right to counsel under the Sixth Amendment. See Gideon v. Wainwright, 372 U.S. 335 (1963); United States v. Thevis, 665 F.2d 616, 645 (5th Cir. 1982); see also May 24 Order at 5 (citing United States v. Unimex, Inc., 991 F.2d 546 (9th Cir. 1993) and Faretta v. California, 422 U.S. 806, 807 (1975)). The denial of the Sixth Amendment right to counsel is “legally presumed to result in prejudice.” See Strickland v. Washington, 466 U.S. 668, 692 (1994); see also Glasser v. United 21

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States, 315 U.S. 60, 76 (1932) (holding the right to counsel is “too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial”). Indeed, “[t]he presumption that counsel’s assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial.” United States v. Cronic, 466 U.S. 648, 649 (1984). Thus, it is well established by the Supreme Court that when counsel is totally absent or prevented from assisting the accused during a “critical stage of the proceeding,” constitutional error exists without the need for showing prejudice. Id.; see e.g. Geders v. U.S., 425 U.S. 80, 92 (1976); Herring v. New York, 422 U.S. 853, 864–65 (1975); Brooks v. Tennessee, 406 U.S. 604, 612–13 (1972); Hamilton v. Alabama, 386 U.S. 52, 55 (1961); White v. Maryland, 373 U.S. 59, 60 (1963) (per curiam); Ferguson v. Georgia, 365 U.S. 570, 595–96 (1961); Williams v. Kaiser, 323 U.S. 471, 475–476 (1945). This Court has similarly concluded that there are certain types of Sixth Amendment claims, such as the absence or denial of counsel entirely, that will always result in assumed constitutional violations. See., e.g., Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001); Bisson v. Howard, 224 F.2d 586, 588 (5th Cir. 1955) (noting the “well-recognized doctrine” that if an accused is put on trial in a federal 22

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court without assistance of counsel, the trial is void). B. HLF was Convicted and Sentenced Without Counsel and Therefore its Trial is Void

As described above, HLF’s counsel withdrew from their legal representation of HLF on the fifth day of voir dire in the first trial. See 4 R.1590–1592 (R. Exc. Tab 9 at 1013–1015). The district court determined that such withdrawal was effective and that HLF went unrepresented for the remainder of the first trial and for the entirety of the second trial and sentencing. See txnd-138723[1] R.145, 153, 156 (R. Exc. Tab 5 at 5, 13, 16). The Record on Appeal provides ample demonstration that HLF was denied legal representation at all critical times during both trials and sentencing: (1) Every cover page of the transcripts (volumes 1–37) of the second trial lists the appearance of individual defendants and their respective counsel, but HLF does not “appear” as a defendant with counsel, 4 R.2270–2271, 4 R.2533–2534, 4 R.2859–2860, 4 R.3178–3179, 4 R.3452–3453, 4 R.3531–3532, 4 R.3732–3733, 4 R.3981–3982, 4 R.4147–4148, 4 R.4410–4411, 4 R.4646–4647, 4 R.4753–4754, 4 R.4971–4972, 7 R.5212–5213, 7 R.5470–5471, 7 R.5713–5714, 7 R.5891–5892, 7 R.6115–6116, 7 R.6392–6393, 7 R.6677–6678, 7 R. 6835–6836, 7 R.6995–6996, 7 R.7212–7213, 7 23

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R.7435–7436, 7 R.7678–7679, 7 R.7927–7928, 7 R.7971–7972, 7 R.8188–8189, 7 R.8430–8431 , 7 R.8563–8564, 7 R.8773–8774, 7 R.8983–8984, 7 R.9134–9135 , 7 R.9310–9311, 7 R.9393–9394, 7 R.9580–9581, 7 R.9822–9823; (2) no motions or responses to the Government’s motions were filed on behalf of HLF during the entire second trial and most of the first trial; (3) the Substitute Protective Order entered by the district court on May 7, 2008, permitting defendants’ counsel to review classified material in the case, specifically lists the names of each defense counsel for the individual defendants that are entitled to review classified materials, but HLF’s counsel is not listed, nor is HLF even listed as a defendant, see 3 R.5644; (4) no counsel made opening or closing arguments on behalf of HLF during either trial, see 4 R.3531–3643 (opening statements); 7 R.9393–9767 (closing arguments); (5) no counsel cross-examined any Government witnesses on behalf of HLF; (6) no counsel presented witnesses on behalf of HLF; 24

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(7) no counsel made any objections on behalf of HLF during the entire second trial and after the fifth day of voir day dire in the first trial; (8) no counsel appeared for HLF at the evidentiary motions hearing or the jury charge conference, see 4 R.3452–3530 (motions hearing); 7 R.9794–9821 (pretrial conference); (9) no counsel moved for a mistrial on behalf of HLF, while all other counsel individually moved for a mistrial on behalf of their respective clients; and (10) no counsel appeared for HLF at its sentencing, 7 R.9789-9790. All of the individual defendants’ counsel actively participated in jury selection, the evidentiary hearing, cross examination, opening and closing arguments, and sentencing, but no counsel participated on behalf of HLF in any of those proceedings during the entire second trial and after the fifth day of voir dire in the first trial. Most illustrative, on the first day of voir dire at the second trial, Judge Solis introduced HLF as a corporate defendant to the jury, noting the counts against HLF. See 4 R.2275–2278. Then, counsel for the Government introduced themselves, followed by counsel for each of the individual defendants who introduced 25

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themselves and stated which individual defendant they represented. No counsel introduced themselves on behalf of HLF; no counsel said they represented HLF. Id. at 2280–2282. Later, at the opening of the trial, Judge Solis entered a plea on behalf of HLF, having been told by the Government counsel that HLF had no one to represent it. See 4 R.3546 . There is no doubt here that HLF was tried, convicted and sentenced without legal representation. Such denial at all critical stages of trial is presumed to result in prejudice to HLF. See Strickland v. Washington, 466 U.S. 668, 692 (1984); United States v. Cronic, 466 U.S. 648, 649 (1984). Thus, under the “well-recognized doctrine” that if an accused is put on trial in federal court without assistance of counsel, the trial is void, this Court should find the trial of HLF void and reverse the conviction. See Bisson v. Howard, 224 F.2d 586, 588 (5th Cir. 1955); see also Burdine,262 F.3d at 349; United States v. Unimex, 991 F.2d 546, 547 (9th Cir. 1993) (finding violation of Sixth Amendment right to counsel could not be harmless error where corporation’s assets were frozen and corporation was tried without counsel).2

2 Additionally, HLF did not waive its right to counsel. Any waiver of the right to counsel would have to be knowing, voluntary and intelligent. See Johnson v. Zerbst, 304 U.S. 458, 464 (1938). The Government can show no such waiver here because in fact HLF could only appear in

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C.

The Conclusions Set Forth in the May 24, 2010 Order Do Not Remedy the Violation of HLF’s Sixth Amendment Right to Counsel

HLF’s Sixth Amendment right to counsel was violated despite the conclusion set forth in the May 24, 2010 Order that HLF had “de facto” legal representation. txnd-138723[1] R.159 (R. Exc. Tab 5 at 19). First, the concept of “de facto” legal representation is not supported in the law and is not applicable here. Second, the “piercing the corporate veil” doctrine, relied upon by the district court, is not an appropriate ground for supporting the conclusion that HLF had “de facto” legal representation. This Court should reject the district court’s determination that HLF was afforded “de facto” legal representation, including its finding that HLF’s interests were adequately represented by its co-defendants’ counsel based on identity of interests. The district court’s conclusion that HLF had “de facto” legal representation by its co-defendants’ counsel during both trials was based on finding that the evidence at trial established that HLF did not operate independently from Baker, Elashi and El-Mezain, who directed and controlled HLF, and that there was no practical distinction between the legal defense of Baker, Elashi, and El-Mezain and

court to make such a waiver through licensed counsel. See Rowland v. California Men’s Colony, 506 U.S. 194, 202 (1993).

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the defense of HLF. txnd-138723[1] R.155 (R. Exc. Tab 5 at 15). The court concluded that in such a situation, it could disregard the legal form of the corporate entity and view the corporation as the alter-ego of the three defendants. Id. at Tab 5 at 55, n5 (citing alter-ego and veil piercing cases, United States v. Wyly, 193 F.3d 289, 302 (5th Cir. 1999), United States v. Empire Packing Co., 174 F.2d 16, 20 (7th Cir. 1949), Nat’l Dairy Prods. Corp. v. United States, 350 F.2d 321, 327 (8th Cir. 1965), and United States v. Gallgher, 856 F.Supp. 295, 299 (E.D.Va. 1994)). The court ultimately concluded that that the attorneys who represented Baker, Elashi, and El-Mezain “adequately represented the interests of the unrepresented corporate entity that was operated by those individual co-defendants” from the time of Freedman Boyd’s withdrawal through sentencing. Id. at Tab 5 at 16. 1. HLF’s Interests Were Not “Adequately Represented” The district court’s conclusion that HLF’s interests were adequately represented is essentially an attempt to demonstrate that HLF suffered no prejudice from the fact that it did not have its own counsel. However, as explained above, the denial of the Sixth Amendment right to counsel is “legally presumed to result in prejudice.” Strickland, 466 U.S. at 692; see also Glasser, 315 U.S. at 76 (the right to counsel is “too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial”); Burdine v. 28

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Johnson, 262 F.3d 336 (5th Cir. 2001). Therefore, the Court need not calculate whether HLF’s interests were adequately protected as required by the Sixth Amendment. Indeed, Strickland directs this Court to presume that the denial of counsel resulted in prejudice to HLF and, therefore reversal is required. See Strickland, 466 U.S. at 692. Even if this Court were to engage in such a calculation, it would find that HLF’s interests were not adequately represented by counsel for Baker, Elashi, and El-Mezain, for several reasons. As an initial matter, while HLF was charged with thirty two counts, defendant El-Mezain was only charged with one count of violating a criminal statute in the second trial. 3 R.7046–7052 (R. Exc. Tab 2 at xx). Because of that fact, El-Mezain’s counsel filed a motion to sever El-Mezain’s trial from the joint trial of the remaining defendants and a motion (later amended) to dismiss the count against El-Mezain. See Docket 1044, dated 06/10/2008 and Docket 1046, dated 06/11/2008, of the district court docket. Counsel for El-Mezain was concerned about the “prejudicial spillover” effect that the trial of the other defendants might have on his own client’s trial. See Docket 1044, dated 06/10/2008, of the District Court docket. Thus, it can hardly be assumed that HLF’s interests were “adequately represented” by El-Mezain’s counsel who would have been trying to 29

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establish to the jury that his client was “in a markedly different position than his co-defendants,” as he stated in his motion. Id. Most importantly, HLF was the only corporate defendant, while the others were individual defendants. Therefore, the only means by which HLF could have been found criminally liable is if the Government proved all the elements of corporate criminal liability. Under Texas law, a “corporation will be criminally liable for the illegal acts of its employees if the employees are acting within the scope of their authority and their conduct benefits the corporation.” See 1 Joel Androphy, White Collar Crime §3.5 (2d. ed, 2010) (“Criminal Liability of the Corporation”); see also Standard Oil of Tex. v. U.S., 307 F.2d 120 (5th Cir. 1962). Consequently, no counsel pointed out to the jury during opening or closing argument that in order to find HLF guilty, the jury would have to find that the individual defendants acted within the scope of their employment and for the benefit of HLF. See 4 R.3574–3643, 7 R.9512–9577. Specifically, if HLF had counsel at trial, it could have, like Abdulquader’s counsel did so during opening arguments, tried to distance itself from the actions of its board and employees, providing a foundation for the “scope of employment” defense it would make later on, but no counsel made that argument for HLF. See 4 R.3603–3607. No counsel tried to rebut the Government’s evidence on this issue or put forth evidence that Baker and Elashi 30

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acted outside the scope of their employment and for their own benefit, but HLF’s counsel, if it had been at trial, would have done so. The district court did not accept the argument that if HLF had counsel it could have put forth that defense because the court determined that “the circumstances and the evidence make that defense unlikely,” see txnd-138723[1] R.156 (R. Exc. Tab 5 at 16). But, that rationale is circular. It is precisely because counsel for Baker, Elashi and El-Mezain were protecting their own clients’ interests and not HLF’s, that they did not make that argument, rebut the Government’s evidence on this issue or put forth evidence in support of that defense. Moreover, it would be the height of unfairness here to speculate in hindsight what HLF’s “counsel” could have done based on the limited evidence at trial where no counsel was representing HLF’s interests. Given that HLF did not have counsel, it was impossible for non-existent counsel to put forth evidence in support of a defense that was available only to HLF and that would have prejudiced the other defendants. Contrary to the district court’s determination, the record below is replete with examples of how HLF’s co-defendants’ counsel did not adequately represent HLF and how HLF was harmed as a result of going to trial with no counsel: (1) Arguments to the jury. Counsel for each of the individual

defendants, including Baker and Elashi, stood up before the jury and 31

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made opening and closing statements about the case. Each counsel took the opportunity to say something about his/her individual client, noting that person’s passion for humanitarian activity, and asking the jury for acquittal. See 4 R.3574–3643, 7 R.9512–9577. HLF made no opening statement, no closing statement, and no argument to the jury of any kind. If given that opportunity, HLF could have told the jury about HLF’s mission and its donors, who contributed money on the faith that the employees would make legal contributions to further HLF’s stated mission. (2) Cross-examination of witnesses. HLF could not

cross-examine the Government’s witnesses because it was not present in court through counsel. (3) Forfeiture hearing. No counsel spoke on behalf of HLF

at the forfeiture hearing, however, each of the individual defendants’ counsel spoke at length regarding their individual clients. See 7 R.9848–9849. No counsel presented evidence on behalf of HLF regarding the effect that the loss of $12.4 million in aid money would have on the Palestinian people and the fact that this money was donated for the express purpose of providing humanitarian aid. Individual 32

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defendants’ counsel made arguments against forfeiture on behalf of their individual clients, by alleging indigency or that they were volunteers and never received anything more than a salary for their work with HLF. Id. at 9855–9859. Counsel for HLF could have countered Mr. Jack’s assertion that HLF was created for and functioned as a fundraiser for Hamas, mentioned that HLF was a non-profit organization that received legitimate donations from donors concerned with the Palestinian people, and argued that HLF’s board and employees used donor’s money wrongly. (4) Sentencing. No counsel showed up to represent HLF at

its sentencing. See 2 R.119 (R. Exc. Tab ?/). Counsel for each of the individual defendants were present for the sentencing of their respective clients and, indeed, each counsel took the opportunity to make argument on behalf of their client and object to the Government’s argument. See 30 R.150–175 (Elashi), 16 R.373–434 (Baker), 25 R.161–205 (El-Mezain), 36 R.301–349 (Abdulqader), 46 R.157-180 (Odeh). The sentencing transcript for Baker is sixty-two pages long, while the other individual defendants’ transcripts run from twenty-five pages to forty-nine pages. Id. The sentencing transcript for HLF is 33

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five pages long. See 7 R.9789–9793. Clearly, counsel for Baker, Elashi and El-Mezain were not “adequately representing” HLF’s interest at sentencing. (5) Scope of Employment Defense. The Government’s

primary testifying case agent, Lara Burns, testified that Baker, Elashi and El-Mezain were involved in another organization—the Islamic Association for Palestine—apart from HLF. 4 R.4205–4208, 4213. Had HLF had counsel at trial, HLF might have delved further into this point, using it to argue that the actions of the co-defendants were taken on behalf of some other organization, not HLF. (6) Efforts to comply with the law. HLF, if represented by

counsel, could have produced for the jury substantially more evidence than was presented at the retrial regarding its motives and efforts to comply with the law. Specifically, HLF had a declaration from its co-defendant Baker, submitted as a corporate statement in the Ashcroft designation litigation, and also various documents and at least one deposition obtained through discovery in a civil lawsuit pending in

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Chicago.3 While HLF does not have access to these documents at this time, they do appear to support HLF’s basic point– that funneling money to Hamas would be antithetical to everything HLF stood for. Finally, the attorneys for Baker, Elashi and El-Mezain themselves did not believe they were representing HLF after the withdrawal by Freedman Boyd on July 20, 2007. They could have only had their individual client’s interests in mind, not HLFs, and therefore they could not have been “adequately representing” or protecting HLF’s interests. As Elashi’s counsel stated at the Evidentiary Hearing: “I can say that at the time we were trying this case twice, I never thought about the case from the Holy Land Foundation's standpoint at all. I was thinking about it purely from Mr. Elashi's standpoint.” txnd-138723[1] R.339 [1/12/10 Tr. at 170]. The record below simply does not support the district court’s conclusion that Baker, Elashi and El-Mezain were adequately representing HLF’s interests. This Court should not adopt the conclusion that HLF had “de facto” legal representation. Indeed, as many examples as counsel can point to here in which trial counsel for HLF could have made an impact on the proceedings, the fundamental point remains that even engaging in this exercise threatens to undermine the procedural

3

Holy Land Foundation for Relief and Development v. Ashcroft, 219 F.Supp.2d 57 (D.D.C. 2002); Boim v. Quranic Literacy Ins., 340 F.Supp.2d 885, 897 (N.D.Ill. 2004).

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guarantees in Strickland and Cronic, which promise that defendants need not demonstrate prejudice in order to find that a denial of counsel violates the Sixth Amendment. Moreover, this is not a case in which the evidence would have left little room for defense strategy. Quite to the contrary, the first trial in this case ended in a hung jury, with multiple jurors committed to voting for an acquittal as to various defendants, and some jurors expressing in interviews afterward that they were unimpressed with the Government’s highly circumstantial case on knowledge and intent. See e.g., Leslie Eaton, No Convictions in Trial Against Muslim Charity, N.Y. TIMES, Oct. 22, 2007. This is precisely the type of case where counsel is crucially significant. 2. There is no Legal Basis for a Finding of “De Facto” Legal Representation There is no legal basis for applying the concept of “de facto” legal representation here, or in any case for that matter. No court has ever concluded that where a criminal defendant is actually unrepresented certain circumstances exist such that the defendant had “de facto” legal representation. Certainly, no court has ever held that where a criminal defendant is actually unrepresented that “de facto” legal representation satisfies the Sixth Amendment right to counsel. There is no concept in the law such as “de facto” legal representation as demonstrated by the 36

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absence of law or legal support in the May 24 Order for the notion that “de facto” legal representation exists or should apply here. 4 There is no precedent to find—after the fact—that a criminal defendant, who lacked counsel throughout trial, had “de facto” legal representation based on the presence of his co-defendants’ counsel, because it would undermine a defendant’s fundamental right to counsel under the Sixth Amendment. See Glasser, 315 U.S. at 76. Moreover, such a finding would be contrary to well-established law, incentivize lower courts to disregard this Court’s holding in United States v. Thevis, 666 F.2d 616, 645 (5th Cir. 1982), and establish a different legal standard under the Sixth Amendment for defendants who had co-defendants, from those who did not. Additionally, the reliance on a doctrine that is used by courts to find civil liability, in the case of torts, or criminal liability for a corporate defendant, to support the conclusion that HLF had legal representation should not be endorsed by this

4 The term “de facto representation,” synonymous with “virtual representation,” is most commonly used to describe a form of res judicata which binds a person or entity to a previous civil judgment even though not a party but where their interests were closely aligned with a person or entity who was a party to the judgment. See, e.g., Aerojet-General Corp. v. Askew, 511 F.2d 710, 719 (5th Cir. 1975). The terms, “de facto representation” and “virtual representation,” do not refer to legal representation nor are the terms used to convey that a person or entity has had legal counsel when they have not. See, e.g., Taylor v. Sturgell, 128 S.Ct. 2161, 2173-74 (2004); Freeman v. Lester Coggins Trucking, Inc., 771 F.2d 860 (5th Cir. 1985). Further, no case has ever applied “de facto representation” in the res judicata context, or in any context, to a criminal defendant.

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Court. In the May 24 Order, the district court determined that HLF was “’de facto’ represented during both trials because the merger of certain Defendants’ identities ensured HLF’s interests were continuously protected from the time of Freedman Boyd’s withdrawal through sentencing.” txnd-138723[1] R.155 (R. Exc. Tab 5 at 15). The court went on to support its conclusion by pointing to what is commonly referred to as the “piercing the corporate veil doctrine,” noting that a “court may disregard the legal fiction of the corporate entity,” and citing “veil piercing” and alter-ego cases. Id. This doctrine, however, is wholly inapplicable to a Sixth Amendment claim and cannot, and should not, be used to support a finding of “de facto” legal representation. The veil piercing or alter-ego doctrine has never been applied by any court, other than the court below in this case, to find that a criminal corporate defendant’s right to counsel under the Sixth Amendment was satisfied. “’Piercing the corporate veil’ is the judicial act of imposing personal liability on otherwise immune corporate officers, directors, and shareholders for the corporation's wrongful acts, and certain elements must be established to do so.” 18 C.J.S. Corporations § 14. “Reverse piercing of the corporate veil occurs when a claimant seeks to hold a corporation liable for the obligations of an individual shareholder.” 18 C.J.S. Corporations § 17. Additionally, “[a] finding of fact of alter ego . . . merely furnishes a means for 38

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a complainant to reach a second corporation or individual upon a cause of action that otherwise would have existed only against the first corporation. 1 Fletcher Cyc. Corp. § 41.10 (“An attempt to pierce the corporate veil is a means of imposing liability on an underlying cause of action”).5 Moreover, because one of the primary purposes of the corporate form is to insulate shareholders from unlimited liability, courts generally apply the alter ego rule with great caution and reluctance. Id.6 Thus, there is no support in the law for applying the “veil piercing” or alter-ego doctrine here where the issue is whether HLF was represented at trial and sentencing. This Court should not sanction use of such a doctrine as a basis for finding that a corporate defendant’s Sixth Amendment right to counsel was satisfied. In fact, there are only a few cases that involve somewhat analogous circumstances to those here, and in those cases, courts never found that “de facto” legal representation existed or that a defendant’s Sixth Amendment right to counsel was protected because his co-defendant’s counsel adequately protected that defendant’s interest simply through representing his co-defendants. In United

5 See e.g., Capital Parks, Inc. v. Southeastern Advertising & Sales System, Inc., 30 F3d 627 (5th Cir. 1994) (applying Texas law); Capital Parks, Inc. v. Southeastern Advertising & Sales System, Inc., 30 F3d 627 (5th Cir. 1994); Mancorp, Inc. v. Culpepper, 802 S.W.2d 226 (Tex 1990). 6 In very limited circumstances, the veil piercing or alter-ego doctrine is applied to extend jurisdiction over a parent corporation for the acts of its subsidiary. See 1 Fletcher Cyc. Corp. § 43.70.

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States v. Cocivera, the CEO/controlling shareholder of six corporations, along with the corporations themselves, were tried for fraud. 104 F.3d 566, 568 (3d Cir. 1996). The attorney originally retained by all defendants withdrew five months before the trial and all defendants were then represented by a court-appointed attorney (Bergstrom). Id. At trial, at the request of Cocivera and after appropriate inquiry, the court permitted him to represent himself, appointing Bergstrom as standby counsel. Id. at 569. The trial court then asked Cocivera if he was representing the

corporate defendants, to which Cocivera responded, “yes,” and the court appeared to assent. Id. On appeal, the corporations contended that they did not knowingly or voluntarily waive their right to counsel. Id. at 571. The court found that because

Cocivera was not a licensed attorney, he could not represent the corporations. Id. 572. Most significant, the court found that the record did not indicate whether Bergstrom’s status as standby counsel applied to the corporations, id. at 571, and therefore it had no basis to assume that Bergstrom's participation as standby counsel on behalf of Cocivera was also on behalf of the corporations. Id. at 573. The Third Circuit ultimately concluded that despite the presence of Cocivera’s standby counsel, “standby counsel cannot remedy the absence of counsel.” Id. at 573 (citing United States v. Novak, 903 F.2d 883, 891 (2d Cir. 1990) (holding 40

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defendant’s Sixth Amendment right violated when it turned out his counsel was not appropriately licensed and noting that local counsel who was absent for part of trial could not be deemed “adequate representation”). Like Cocivera, the instant case involves several defendants that are both individual defendants and a corporate defendant with a similar owner/director relationship and allegations of an alter-ego relationship between defendants. See Id. at 571 (Government argued in Cocivera that CEO effectively ran the corporations and was their alter ego). The Cocivera holding is instructive: the fact that one defendant had standby counsel, who was protecting that defendant’s interest, did not remedy the lack of counsel for the other defendants. Here, the fact that HLF’s co-defendants’ had counsel does not remedy the fact that HLF did not. Additionally, the Cocivera court still found no basis to assume that standby counsel for the individual was also acting on behalf of the corporations, despite the allegations that the individual defendant was the alter-ego of the corporate co-defendant. Here, despite the district court’s determination that HLF did not operate independently from its co-defendants, there is no basis to assume that its co-defendants’ counsel acted on behalf of both the individuals and HLF during both trials and sentencing. In Grace v. Bank Leumi Trust Co. of NY, shareholders initiated an action 41

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against two corporations and their corporate officers Rosenstock and Genser. F.3d 180, 184 (2d Cir. 2006). Although initially the corporations had separate counsel from the individual defendants, their law firm had to withdraw midway

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through trial. Id. at 184. Counsel for the individual defendants determined that he had a conflict of interest between the corporations and his individual clients and therefore he could not represent the corporations. Eventually, default judgment was entered against the companies which did not have counsel. Id. at 185. The plaintiffs reached a settlement for separate amounts in damages with one company (Briggs) and with Rosenstock, who represented himself pro se and who also purported to be acting on behalf of Briggs. Id. In a second action, non-parties argued that the initial judgment and settlement against Briggs should be set aside because it had no legal representation at the time, because a corporation can only appear through licensed counsel. Id. at 191–92. On appeal, the Second Circuit found that even if an attorney for Briggs would have been superfluous and “merely carried out an agreement” already reached by Rosenstock, that an attorney still could have rendered some assistance, especially considering the conflict of interests between Rosenstock and the corporation (Briggs): “It is impossible to know what role an attorney for Briggs would have

played, but it is likely that she would have played some role in the negotiation 42

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beyond simply passing along information to plaintiffs, especially considering that Rosenstock and Briggs had conflicting interests.” Id. at 192. As a result, the

court vacated the earlier judgment against Briggs. Id. at 194. Grace was a mere civil case yet the court reached the same conclusion as in Cocivera: that the right of a party—even a corporation with co-defendants that are owners or directors of the corporation—to have its own legal representation is absolutely fundamental. Grace demonstrates that when an attorney withdraws from representing a corporation and that corporation goes unrepresented, the judgment must be reversed even in circumstances where an attorney would have played a minimal role.7 This Court should not adopt the district court’s determination that HLF had “de facto” legal representation and reverse the conviction of HLF. II. EVEN IF HLF HAD “DE FACTO” LEGAL REPRESENTATION, ITS SIXTH AMENDMENT RIGHTS WERE STILL VIOLATED In the May 24 Order, the district court determined that HLF did not have legal

7 This is further supported by the fact that in criminal cases, courts have been unwilling to accept the withdrawal of counsel when the actions of counsel make it difficult for the defendant to obtain a substitute. See, e.g., Lowenfield v. Phelps, 817 F.2d 285, 289 (5th Cir. 1987) (trial court’s denial of counsel’s motion to withdraw where procuring substitute counsel would have caused delay was not an abuse of discretion); United States v. Ruiz, 533 F.2d 939, 940 (5th Cir. 1976) (trial court’s decision to deny counsel’s motion to withdraw was not an abuse of discretion).

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representation but, relying on an inapplicable doctrine and finding that HLF’s interests were adequately protected by its co-defendants’ counsel, concluded that HLF had “de facto” legal representation during two criminal trials and sentencing. txnd-138723[1] R 143-156 (R. Exc. Tab 5 at x). For the reasons explained above, the court’s finding is not supported by the record, has no basis in law and is inapplicable here. However, even if this Court adopts the conclusion that HLF had “de facto” legal representation, its Sixth Amendment right to counsel was still violated. First, no Rule 44 inquiry was held despite the potential conflict of interest between Baker and HLF. The failure to conduct a Rule 44 inquiry resulted in actual conflict that adversely affected HLF’s “de facto” attorney’s performance and therefore its Sixth Amendment right to conflict free counsel was violated. See Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). Second, if this Court determines that HLF was “de facto” represented by its co-defendants’ counsel, it would also have to find that such “de facto” representation was “effective assistance of counsel” as required by the Sixth Amendment in order to affirm HLF’s conviction and sentence. The evidence does not support either ground and therefore, HLF’s Sixth Amendment right to counsel was violated. A. The Failure to Conduct a Rule 44 Inquiry Violated HLF’s Sixth Amendment Right to Conflict-Free Counsel In order to affirm HLF’s conviction and sentence, this Court must not only 44

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find that HLF had “de facto” legal representation, it must also find that its Sixth Amendment right to conflict free counsel was not violated when it was “de facto” represented by its co-defendants’ counsel. For the reasons below, such a conclusion is unsupported by the evidence. The Sixth Amendment guarantees a criminal defendant the right to conflict-free counsel. See Glasser v. United States, 315 U.S. 60 (1942). Accordingly, in cases where co-defendants are represented by the same counsel, “the court must promptly inquire about the propriety of joint representation and must personally advise each defendant on the right to the effective assistance of counsel, including separate representation.” Fed. Crim. Pro. R. 44(c)(2). Here, although this Court’s remand order did not request the lower court to address Rule 44, the district court determined that a Rule 44 inquiry did not take place at either trial and that the court never found that HLF knowingly, voluntarily and intelligently waived its right to separate counsel. txnd-138723[1] R.150 (R. Exc. Tab 5 at 10). 4 R.1590–1593. Thus, there is no question that a Rule 44 inquiry did not occur and therefore, no effective waiver of conflict could have occurred here.8

8 Some courts assume prejudice where no Rule 44 inquiry has taken place. See, e.g., United States ex rel. Hard v. Davenport, 478 F.2d 203, 211 (3rd Cir. 1972) (citing Campbell v. United

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Although irrelevant to the remand, the district court then went on to determine that there was no conflict of interest between Baker and HLF from September 2004 until July 20, 2007. Id. However, in analyzing whether HLF was represented, the court also determined that counsel for Baker, Elashi and El-Mezain together adequately represented HLF’s interests, thereby making those attorneys “de facto” counsel for HLF. See txnd-138723[1] R.156 (R. Exc. Tab 5 at 16). Therefore, if this Court finds that the three individuals’ counsel were HLF’s “de facto” counsel, then it would also have to find that there was no conflict of interest between HLF and Baker, HLF and Elashi, and HLF and El-Mezain, otherwise HLF’s right to conflict-free counsel would have been violated. In determining whether HLF’s right to conflict-free counsel was violated, this Court asks whether there was an actual conflict of interest between HLF and its co-defendants Baker, Elashi, and El-Mezain that adversely affected HLF’s “de facto” attorneys’ performance. See Cuyler v. Sullivan, 446 U.S. 335, 348 (1980); see also Mickens v. Taylor, 535 U.S. 162, 172 (2002) (actual conflict of interest means precisely a “conflict that affected counsel’s performance”) (emphasis in

States, 122 U.S.App.D.C. 143 (1965)). Some courts assume a conflict resulted from joint representation if no or inadequate inquiry was conducted. Id.; see also United States. v. DeBerry 487 F.2d 488 (2nd Cir. 1973) (reversing convictions of both defendants where one took the stand and incriminated his codefendant who was represented by the same counsel and the inquiry of the district court judge insufficient to establish lack of prejudice).

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original). This Court has found that an actual conflict exists if “counsel’s introduction of probative evidence or plausible arguments that would significantly benefit one defendant would damage the defense of another defendant whom the same counsel is representing.” Baty v. Balkcom, 661 F.2d 391, 395 (5th Cir. 1981) (actual conflict where if either defendant testified at trial he would implicate the other defendant while exonerating himself); see also United States v. Lyons, 703 F.2d 815, 820–821 (5th Cir. 1983). Further, the failure of counsel to act on behalf of one defendant to his detriment because not acting would benefit the other defendant establishes actual conflict. See United States v. Salado, 339. F.3d 285, 291 (5th Cir. 2003); see also United States v. Lachman, 521 F.3d 12, 21 (1st Cir. 2008) (where counsel was representing two corporate defendants and an individual defendant who was president, chairman, and owner of the corporations, defendant was entitled to new trial upon a showing that a “plausible alternative defense strategy… was either foreclosed or inhibited by the joint representation.”). Here, there can be no doubt that an actual conflict existed between HLF and Baker, Elashi and El-Mezain that adversely affected the “de facto” representation of HLF. As explained above, the single most pertinent fact is that HLF was the only corporate defendant, whereas its co-defendants were individual defendants who 47

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were its directors and officers.9 As the only corporate defendant, HLF was the only defendant for which, in order to find guilty, the jury had to find that HLF’s employees acted within the scope of their employment and for the benefit of HLF. See 1 Joel Androphy, White Collar Crime §3.5 (2d ed. 2010) (“Criminal Liability of the Corporation”); Standard Oil Co. of Tex. V. United States, 307 F.2d 120, 127 (5th Cir. 1962). Thus, HLF was the only defendant that would and could have argued and introduced evidence that Baker, Elashi and El-Mezain acted outside the scope of their employment and that such conduct did not benefit HLF. Counsel for Baker, Elashi, and El-Mezain never would have made that argument because it would have been detrimental to the clients they believed they were representing. Though the district court stated that the “circumstances and evidence make that defense unlikely,” see txnd-138723[1] R.156 (R. Exc. Tab 5 at 16), it is precisely because HLF didn’t have counsel that there was no evidence to support that defense. There

9 When co-defendants consist of a corporation(s) and its directors and officers, there is a the serious potential for a conflict of interest. See, e.g., In Re Grand Jury Proceedings, 469 F.3d 24, 26 (1st Cir. 2006) (in analyzing whether the CEO’s attorneys could speak on behalf of the corporation, the court declared that such a representation would “invite an intolerable conflict of interests: due to their status as codefendants in the same investigation where codefendants’ interests “frequently diverge”); United States v. Cocivera, 104 F.3d 566 (3d Cir. 1996) (noting potential conflict of interest in case involving six corporations and their president); Messing v. FDI, Inc., 439 F.Supp. 776, 782 (N.D.J. 1977) (noting possible conflict between corporation and director in fraud investigation and ordering that corporation retain independent counsel).

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was no evidence going to the issue of whether the three defendants acted outside the scope of their employment and to their own benefit because counsel for Baker, Elashi and El-Mezain did not attempt to introduce any evidence or rebut the Government’s evidence reading the same because it would have prejudiced their own cases. Therefore, an actual conflict did exist. See Baty, 661 F.2d 395 (actual conflict exists where “counsel’s introduction of probative evidence or plausible arguments that would significantly benefit one defendant would damage the defense of another defendant whom the same counsel is representing”).10 More recently, Government counsel noted the existence of potential conflict: MS. COWGER: “We do agree that there is a potential conflict. Any time there is a corporation and its officers that are charged in the same crime, it could be, as Ms. Natarajan explains in her filing, that the corporation would say, ‘We are shocked that our officers have done this. It is not the corporation's acts. It is their acts, and they are outside the scope of employment and they acted on their own, and we are not guilty but they may be.’ That is the potential conflict.” txnd-138723[1] R.284 [1/12/10 Hearing Tr at 115]. Further, such actual conflict adversely affected HLF’s “de facto” attorneys’

10 Moreover, a number of factors exist here that this Court has previously determined help establish actual conflict: (1) the strong likelihood that counsel for Baker, Elashi and El-Mezain had confidential information that could have been harmful to HLF; (2) the subject matter of the multiple representation was the same; and (3) the multiple representations occurred at the same time. See United States v. Infante, 404 F.3d 376, 392 (5th Cir. 2005) (holding that actual conflict existed where an attorney represented multiple defendants in separate but substantially related drug conspiracy charges).

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performance. As detailed above in section I.C.1, counsel for Baker, Elashi and El-Mezain failed to at all critical times to make motions, present argument, rebut the Government’s evidence or introduce evidence regarding the scope of employment and corporate benefit, all of which would have greatly advanced HLF’s defense. Additionally, HLF’s “de facto” attorneys’ failed to propose a jury instruction that was more favorable to HLF regarding the standard for corporate criminal liability. Compare Defendants’ Joint Proposed Jury Instructions, 17 R 389 (R. Exc. Tab 8 at xxx), to 4 Joel Androphy, White Collar Crime § 41:38 (2d ed., 2010), (“Proposed Jury Instructions for Defendant”). This failure is directly related to the inherent conflict between HLF—a corporation—and its co-defendants, who are its officers. The failure of HLF’s “de facto” counsel to introduce probative evidence or make plausible arguments demonstrates actual conflict that adversely affected their performance, and accordingly, a conflict of interest existed such that HLF’s right to conflict-free counsel under the Sixth Amendment was violated and the conviction should be reversed. B. HLF’s “De Facto” Legal Representation Was Ineffective and Violated HLF’s Right to Effective Assistance of Counsel

Even if this Court adopts the district court’s unprecedented theory of “de facto” legal representation, such representation, to the extent it existed, could not 50

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have been sufficient to satisfy HLF’s Sixth Amendment right to effective counsel under United States v. Cronic, 466 U.S. 648 (1984) and Strickland v. Washington, 467 U.S. 1267 (1984). The Strickland standard generally requires a showing that counsel’s performance was deficient and that the performance prejudiced the defense. Id. at 687; see also Harris v. Day, 226 F.3d 361, 364 (5th Cir. 2000). A showing of deficiency requires that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” while prejudice requires showing that counsel’s errors deprived the defendant of a fair trial, whose result is unreliable. Strickland, 467 U.S. at 687 (emphasis in original). As detailed in Section I.B., no counsel acted on HLF’s behalf at all critical times during the two trials and sentencing. Moreover, HLF’s status as a corporate defendant required the Government to prove that HLF’s agents acted within the scope of their employment and to the benefit of HLF, yet no attorney introduced evidence or attempted to rebut the Government’s evidence on this issue, or make opening or closing arguments regarding the same. There should be no serious question that this “performance” was deficient within the meaning of Strickland. See 467 U.S. at 687; see also Carty v. Thaler, 583 F.3d 244, 245 (5th Cir. 2009). 51

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The only remaining question is whether HLF can establish that its “de facto” defense was prejudiced as a result of this deficient performance. Generally, in situations in which counsel is not present, prejudice is presumed. Cronic, 466 U.S at 649. In Burdine v. Johnson, the defendant was convicted of capital murder and sentenced to death. 262 F.3d 336, 338 (5th Cir. 2001). This Court held that the defendant did not have counsel at every critical stage of a criminal proceeding as required by Strickland because his court-appointed attorney slept during substantial portions of his trial. Id. (“We conclude that a defendant’s Sixth Amendment right to counsel if violated when that defendant’s counsel is repeatedly unconscious through not insubstantial portions of the defendant’s capital murder trial.). Thus, prejudice was assumed because defendant’s counsel was not “present” at defendant’s trial. Burdine, 262 F.3d at 349. Similarly, prejudice should be presumed here because HLF’s “de facto” counsel failed to be “present” in every regard at HLF’s trial and sentencing. If the Court does not presume prejudice here, however, it may find prejudice because the record shows a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” See Strickland, 467 U.S. at 694. As demonstrated in sections I.C.1and II.A, examples abound in the record 52

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where the “guiding hand of counsel” could have made a difference in the outcome. See Powell v. Alabama, 287 U.S. 45, 69 (1932). HLF also had no opportunity to address the jury at all in order to ask for acquittal on the basis that the Government did not carry its burden in proving that evidence met the corporate criminal liability standard. Failure to argue to the jury, while not always dispositive in cases

alleging ineffective assistance of counsel, weighs heavily in favor of a finding of prejudice. See e.g., Herring v. New York, 422 U.S. 853, 862 (1975) ("In a criminal trial, which is in the end basically a fact finding process, no aspect of such advocacy could be more important than the opportunity finally to marshal the evidence for each side before submission of the case to judgment.") This Court has addressed a situation analogous to the one here. In Catalan v. Cockrell, two brothers were charged with aggravated assault and tried together. 315 F.3d 491, 492(5th Cir. 2002). On the first day of trial, the lower court became concerned that both defendants were represented by the same attorney so the court appointed a new attorney for one of the brothers. Id. That attorney did not request any extension of the trial in order to prepare, even though the attorney was entitled to at least 10 days under state law, and in fact spent less than an hour with the defendant before the trial began. Id. In conducting the trial, the new attorney relied on the decisions of the previously conflicted attorney, and failed to cross-examine the 53

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victim about a prior inconsistent statement favorable to his client. Id. This Court granted habeas relief to Catalan despite the state court’s rejection of his claim because the violation of the Sixth Amendment was so clear on the facts presented. Id. at 493. Here, HLF had counsel that withdrew on the eve of trial based on a potential conflict, but never received another attorney, and never had the opportunity to present any defense at all, much less any defense that may have conflicted with positions favored by its co-defendants. The fact that counsel for the co-defendants had all entered into a joint defense agreement is irrelevant to the arguments available to the defendants at trial. Joint defense agreements are common in cases involving multiple defendants, and serve primarily to facilitate the exchange of information between counsel for co-defendants by extending the protections of the attorney-client privilege to those communications, which otherwise would not be protected. Joint defense agreements among criminal defendants’ counsel do not bind parties to pursue the same defense strategy. Walker v. Financial Corp. of America, 828 F.2d 579, 584 (9th Cir. 1987). Accordingly, to the extent this Court determines that HLF was “de facto” represented, that representation falls woefully short of anything that would pass 54

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muster under the Sixth Amendment, and HLF is entitled to a new trial. III. HLF’S SIXTH AMENDMENT RIGHT UNDER THE CONFRONTATION CLAUSE WAS VIOLATED WHEN IT WAS TRIED, CONVICTED, AND SENTENCED WITHOUT LEGAL REPRESENTATION Corporate defendants are protected by the Confrontation Clause in the Sixth Amendment. See United States v. Thevis, 665 F.2d 616, 645 n.35 (5th Cir. 1982), superseded on other grounds by Fed. R. Evid. 804(b)(6); see also Crawford v. Washington, 541 U.S. 36, 63–64 (2004). Under the Confrontation Clause, a corporate defendant has the right to see and rebut the Government’s evidence, cross-examine adverse witnesses, and present a defense. See Kittelson v. Dretke, 426 F.3d 306, 318 (5th Cir. 2005) (reversing conviction because the trial court violated the Confrontation Clause when it prevented defendant from pursuing one line of questioning with Government witnesses relevant to its theory of case); United States v. Jimenez, 464 F.3d 555, 559 (5th Cir. 2006) (finding violation of Confrontation Clause when defense counsel was prevented from forcing Government witness to answer one specific question that related to the witness’s ability to observe illegal activity witnessed); Ferguson v. United States, 329 F.3d 923, 924 (10th Cir. 1964) (reversing criminal convictions for multiple defendants because court only allowed one attorney to conduct cross-examinations of 55

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Government witnesses). Here, because HLF as a corporate entity could appear only through licensed counsel, see Rowland v. California Men’s Colony, 506 U.S. 194, 202 (1993), the fact that it had no counsel at trial effectively precluded HLF from engaging in any meaningful challenge to the Government’s case and therefore, its Sixth Amendment right under the Confrontation Clause was violated. See Davis v. Alaska, 415 U.S. 308, 317 (1974) (under Confrontation Clause, jurors are entitled to have the benefit of defendant’s theory to make informed decisions about witnesses); Kittelson, 426 F.3d at 318 (preventing defendant from presenting defense theory violates Confrontation Clause); see also Ferguson, 329 F.2d 923. Confrontation Clause violations are reviewed de novo and require reversal unless the error is harmless beyond a reasonable doubt. Jimenez, 464 F.3d at 558, 562; see also Brecht v. Abrahamson, 507 U.S. 619, 634–37 (1993). In determining whether a Confrontation Clause violation requires reversal, this Court only asks whether the violation could have contributed to the defendant’s conviction. See Jimenez, 464 F.3d at 562. Further, this Court should assume that the full damaging potential of cross-examination would be achieved by the defendant. Jimenez, 464 F.3d at 563; see also Davis, 415 U.S. at 317 (refusing to speculate on whether jury would have accepted a particular defense, but holding jury was entitled to 56

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presentation of that defense). Here, because HLF’s lack of counsel prevented it from cross-examining any Government witnesses, or presenting any defense theory at all, the answer must be yes. As explained above, HLF was prevented from presenting the theory that, if any illegal conduct occurred, HLF’s directors and officers acted outside the scope of employment and to their personal benefit. Specifically, HLF was denied the right to cross-examine witnesses and to present testimony to support this theory as demonstrated by the many examples provided above. Additionally, as was the case in Kittelson and Jimenez, HLF’s case came down to the credibility of the Government’s witnesses. It is undisputed that HLF never gave money to an organization designated by law as a terrorist organization. 7 R.8451–8453 [Second Trial Tr. Vol. 29; 22: 19 – 24: 4]. Therefore, the case turned on whether the jury believed the Government witnesses who testified that HAMAS’s control of the organizations donated to by HLF was well known. 7 R.9424–9438 [Second Tr. Vol. 35, 32-46]. In Kittelson and Jimenez, this Court reversed the convictions because the inability of the defendants to cross-examine witnesses could have contributed to each defendant’s conviction. Those cases only involved restrictions on a single issue or witness. Here, such inability was magnified because HLF was restricted from addressing any issues and from questioning all witnesses. The 57

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complete denial of HLF’s right to cross-examine witnesses contributed to HLF’s conviction, and HLF is therefore entitled to reversal. IV. HLF’S DUE PROCESS RIGHTS WERE VIOLATED WHEN IT WAS TRIED, CONVICTED, AND SENTENCED IN ABSENTIA The Due Process Clause protects the right of a criminal defendant to be present “whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend the charge.” Snyder v. Mass., 291 U.S. 97, 105–06 (1934) overruled in part on other grounds by Malloy v. Hogan, 378 U.S. 1 (1964). Although this due process right does not extend to every facet of a trial, it applies to all portions of the trial where “a fair and just hearing would be thwarted by [the defendant’s] absence.” Id. at 108. See also Kentucky v. Stincer, 482 U.S. 730, 745 (1987); United States v. Gagnon, 470 U.S. 522, 526-27 (1985) (due process protects “some situations where the defendant is not actually confronting witnesses or evidence against him”); Pointer v. Texas, 380 U.S. 400, 405 (1965) (depriving accused of right to cross-examine witnesses against him is denial of due process); United States v. Bigelow, 462 F.3d 378, 380–81 (5th Cir. 2006) (defendant’s due process right to be present was violated when not present to contest drug-treatment provision at sentencing); Green v. Johnson, 116 F.3d 1115, 1124 (5th Cir. 1997) (right to presence can be violated when defendant is absent from hearings and 58

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conferences if the Snyder test is met). Although counsel has found no case specifically applying the Snyder test to corporate defendants, courts have consistently held that the Due Process Clause applies to corporate as well as individual defendants. See, e.g., Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 412–14 (1984) (applying Due Process Clause to limit state courts’ reach of personal jurisdiction to corporate defendants); Fong Foo v. United States, 369 U.S. 141, 143 (1962) (applying Double Jeopardy Clause of Fifth Amendment to protect corporate defendant); S.A.F.E. Export Co. v. United States, 803 F.2d 696, 700 (Fed. Cir. 1986) (applying Due Process Clause to hold that Government contractors must provide corporations “notice and opportunity” to refute charge of lack of trustworthiness in contract bid). Because corporations may appear in court only through licensed counsel, see Rowland, 506 U.S. at 202, the mere presence of a corporate officer at a trial will not satisfy due process. See, e.g., Donovan v. Road Rangers Country Junction, Inc., 736 F.2d 1004, 1005 (5th Cir. 1984) (barring company’s secretary from appearing at trial on behalf of the corporation because she was not a licensed attorney); Southwest Exp. Co., Inc. v. I.C.C., 670 F.2d 53, 55–56 (5th Cir. 1982) (rejecting contention that corporation may enter appearance through its president). As the district court determined, HLF’s counsel effectively withdrew on July 59

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20, 2007 and HLF proceeded without counsel for the remainder of the first trial, the entirety of the second trial and sentencing. Supp. Holyland R.167; 7 R.9789–9793. [See May 24 Order; see also HLF Sentencing Transcript; Section I.B, supra.] Because it had no legal counsel, HLF did not have the opportunity to confront witnesses or be present at sentencing, where its presence through counsel would have contributed to HLF’s opportunity to defend against the charges. See Snyder, 291 U.S. at 105–06; Pointer, 380 U.S. at 405; Bigelow, 462 F.3d at 380–81. Nor did HLF have the opportunity to be present through counsel at the initial evidentiary hearing, other hearings throughout the trial, or the charge conference. Such absence thwarted a “fair and just” trial as required by Snyder, and HLF is therefore entitled to reversal. See Green v. Johnson, 116 F.3d 1115, 1124 (5th Cir. 1997). V. HLF WAS DENIED ITS RIGHTS UNDER FEDERAL RULE OF CRIMINAL PROCEDURE 43 TO BE PRESENT AT CRITICAL STAGES OF ITS TRIAL WHEN IT WAS NOT REPRESENTED BY COUNSEL The Federal Rules of Criminal Procedure provide that a “defendant must be present at: (1) the initial appearance, the initial arraignment, and the plea; (2) every trial stage, including jury impanelment and the return of the verdict; and (3) sentencing.” Fed. R. Crim. P. 43(a)(1)–(3). Generally speaking, Rule 43 is not satisfied merely by ensuring that counsel for an individual defendant is present at a 60

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particular stage of the trial. See, e.g., United States v. Alikpo, 944 F.2d 206, 211 (5th Cir. 1991) (reversing based on a violation of Rule 43, despite the presence of counsel). An exception exists only for an “organization represented by counsel,” based on the general rule that a corporation may appear in court only through a licensed attorney. The protections provided under Rule 43 are broader than the Due Process Clause’s right to presence. See Young v. Herring, 938 F.2d 543, 557 (5th Cir. 1991). As a result, Rule 43 is violated when the defendant is denied the opportunity to be present at any of the portions of trial listed in Rule 43(a), regardless of whether the Snyder test is met. See id. A. HLF’s Rule 43 Rights Were Violated when it Was Not Present at Trial Because It Was Not Represented by Counsel

Freedman Boyd withdrew from representation of HLF on the fifth day of voir dire of the first trial, and as a result HLF was not present from that day forward. 4 R.1590–1593. As detailed above, it is clear that HLF was unrepresented at all relevant times identified by Rule 43. See supra Section I.B (HLF absent during jury impanelment and cross examination of the Government’s witnesses in its case-in-chief); see also 4 R.2275–2278, 2281–2283 [Second Trial Tr., Vol. 1 at 6-9,11-13] (HLF absent throughout trial); 4 R.3546 [Second Trial Tr., Vol. 6 at 16]; 61

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7 R.9790–9791 [Second Trial Sentencing at1–2] (HLF absent at sentencing); 7 R.9822–9874 [Second Trial Tr., Vol. 37 at 1–53] (HLF absent when verdict read). Moreover, whether to proceed with certain portions of a trial when the defendant is not present requires an on-the-record analysis of several factors. United States v. Benavides, 596 F.2d 137, 139–40 (5th Cir. 1979). Failure to engage in a Benavides inquiry constitutes reversible error. United States v. Beltran-Nunez, 716 F.2d 287, 288–90 (5th Cir. 1983) (given the “narrow discretion” that trial courts have to proceed in a defendant’s absence, failure to engage in the Benavides inquiry required new trial). Here, HLF’s absence was involuntary as it had no means of procuring counsel and securing its presence at trial. In addition, the trial court did not engage in the Benavides balancing test required in this circuit to proceed in the defendant’s absence. Reversal is therefore required. B. The Denial of HLF’s Rule 43 Rights Was Not Harmless Error

In order for the absence of a defendant to be harmless error, a court must “find beyond a reasonable doubt that the defendant’s absence did not prejudice his substantial rights.” Alkipo, 944 F.2d at 209 (reversing defendant’s conviction for heroin possession and related crimes when defendant failed to appear in court on time, and the court began voir dire without him). 62

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Like in Alikpo, HLF was not present for most of voir dire in the first trial and for the entire voir dire of the second trial, its counsel having withdrawn on the fifth day of the first trial. 4 R.1590–1592 (R. Exc. Tab 9 at 1013–1015); 4 R.2275-2278, 22800–2283. Additionally, as mentioned above, HLF was absent during all of the enumerated trial portions in Rule 43. As a result, HLF was unable to assert its interests in opening or closing arguments, or during cross-examination. Here, because HLF could be present only through licensed counsel, its absence not only prevented it from providing “meaningful assistance to counsel” but in fact prevented effective advocacy altogether. Alikpo, 944 F.3d at 30. As a result, HLF’s right to be present at its own trial was violated under Rule 43 and such denial was not harmless error. VI. IN THE ALTERNATIVE, HLF IS ENTITLED TO REVERSAL BASED ON THE ARGUMENTS RAISED BY CO-DEFENDANTS-APPELLANTS BAKER, ELASHI, AND ABDULQADER Pursuant to Fed. R. App. P 28(i), Defendant-Appellant HLF expressly adopts the following issues and arguments raised in the other Defendant-Appellants’ briefs.: (1) From Defendant-Appellant Elashi’s brief, HLF adopts

issues one, two, three, four, five, six, seven, and eight. 63

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(2)

From Defendant-Appellant Mufid Abdulqadar’s brief,

HLF adopts issue one. (3) from Defendant-Appellant Shukri Abu Baker’s brief, HLF

adopts issues seven, eight, and nine. CONCLUSION

For the foregoing reasons, the defendant-appellant-cross-appellee, HOLY LAND FOUNDATION FOR RELIEF AND DEVELOPMENT, respectfully requests that its conviction be vacated and the case be remanded to the district court for further proceedings in accordance with the Court’s opinion. Date: October 19, 2010 Respectfully submitted, ___/s/ Kristine A. Huskey______________ KRISTINE A. HUSKEY Texas Bar No. 24002328 RANJANA NATARAJAN Texas Bar No. 24071013 H. MELISSA MATHER Texas Bar No. 24010216 Pending admission in the Fifth Circuit Court of Appeals NATIONAL SECURITY CLINIC UNIVERSITY OF TEXAS SCHOOL OF LAW 727 East Dean Keeton St. Austin, TX 78705 64

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Tel: 512-232-2698 Fax: 512-232-0800 Email: [email protected] On the Brief: Rachel Anne Fletcher, Law Student Jonathan Chaltain, Law Student John Rhoads, Law Student Attorneys For Defendant-Appellant-CrossAppelle, Holy Land Foundation For Relief And Development

65

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CERTIFICATE OF SERVICE

I, Kristine A. Huskey, certify that today, October 19, 2010, a copy of the opening brief for defendant-appellant-cross-appellee Holy Land Foundation for Relief and Development was filed with the Clerk of the Court by using the Electronic Case Filing (CM/ECF) system, which will send a notice of the electronic filing to all counsel of record. ___/s/ Kristine A. Huskey Kristine A. Huskey Attorney for Defendant-AppellantCross-Appellee, HOLY LAND FOUNDATION FOR RELIEF AND DEVELOPMENT

66

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CERTIFICATE OF COMPLIANCE

Pursuant to 5th Cir. R. 32.2.7(c), undersigned counsel certifies that this brief complies with the type-volume limitations of 5th Cir. R. 32.2.7(b). 1. Exclusive of the portions exempted by 5th Cir. R. 32.2.7(b)(3), this brief contains 13,232 words printed in a proportionally spaced typeface. 2. This brief is printed in a proportionally spaced, serif typeface using Times New Roman 14 point font in text and Times New Roman 12 point font in footnotes produced by Microsoft Office Word 2010 software. 3. Upon request, undersigned counsel will provide an electronic version of this brief and/or a copy of the word printout to the Court. 4. Undersigned counsel understands that a material misrepresentation in completing this certificate, or circumvention of the type-volume limits in 5th Cir. R. 32.2.7, may result in the Court’s striking this brief and imposing sanctions against the person who signed it. ___/s/ Kristine A. Huskey Kristine A. Huskey Attorney for Defendant-AppellantCross-Appellee HOLY LAND FOUNDATION FOR RELIEF AND DEVELOPMENT

67

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United States Court of Appeals
FIFTH C IR C U IT O FFIC E O F TH E C LER K LYLE W . C A YC E C LER K TEL. 504-310-7700 600 S. M A ESTR I PLA C E NEW O R LEA N S, LA 70130

October 20, 2010

Ms. Kristine Anne Huskey University of Texas School of Law National Security Clinic 727 E. Dean Keeton Street Austin, TX 78705-0000 No. 09-10560 Cons/W 08-10664,et. al. USDC No. 3:04-CR-240-3 USDC No. 3:04-CR-240-2 USDC No. 3:04-CR-240-4 USDC No. 3:04-CR-240-7 USDC No. 3:04-CR-240-8 USDC No. 3:04-CR-240-1 USA v. Holy Land Foundation

The following pertains to your brief electronically filed on October 19, 2010. You must submit the seven paper copies of your brief required by 5TH CIR. R. 31.1 within 5 days of the date of this notice pursuant to 5th Cir. ECF Filing Standard E.1. Failure to timely provide the appropriate number of copies will result in the dismissal of your appeal pursuant to 5th Cir. R. 42.3. Sincerely, LYLE W. CAYCE, Clerk

By:_________________________ Nancy F. Dolly, Deputy Clerk 504-310-7683 cc: Mrs. Marlo Pfister Cadeddu Mr. John D. Cline Ms. Susan Cowger Mr. Joshua L Dratel Ms. Theresa M. Duncan Ms. Nancy Hollander Mr. James Thomas Jacks Ms. K.C. Goodwin Maxwell Ms. Linda Moreno Mr. Aaron J Mysliwiec Mr. Ranjana Natarajan Mr. Joseph Francis Palmer Mr. Michael E. Tigar Mr. Gregory Burke Westfall

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