Holy Land Foundation Corporate Entity Appeal

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

v.
MOHAMMAD EL-MEZAIN,
Defendant – Appellant
Plaintiff – Appellee – Cross-Appellant
v.
HOLY LAND FOUNDATION FOR RELIEF AND DEVELOPMENT, also
known as HLF,
Defendant – Appellant – Cross-Appellee

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 NATIONAL SECURITY CLINIC

Texas Bar No. 24002328 UNIVERSITY OF TEXAS SCHOOL
Email: khuskey@law.utexas.edu OF LAW
727 East Dean Keeton St.
RANJANA NATARAJAN Austin, TX 78705
Texas Bar No. 24071013 Tel: 512-232-2698
Fax: 512-232-0800
H. MELISSA MATHER
Texas Bar No. 24010216
ATTORNEYS FOR DEFENDANT-
On the Brief: APPELLANT-CROSS-APPELLEE,
Rachel Anne Fletcher, Law Student HOLY LAND FOUNDATION FOR
Jonathan Chaltain, Law Student RELIEF AND DEVELOPMENT
John Rhoads, Law Student
DATED: October 19, 2010

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
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
Austin, TX 78705
Tel: 512-232-2698
Attorney for Defendant-Appellant-Cross-

Appellee, HOLY LAND FOUNDATION
FOR RELIEF AND DEVELOPMENT, also
known as HLF
ii
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.
iii
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
SENTENCED WITHOUT LEGAL REPRESENTATION ..........................55

IV. HLF’S DUE PROCESS RIGHTS WERE VIOLATED WHEN IT WAS
TRIED, CONVICTED, AND SENTENCED IN ABSENTIA .....................58
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 ..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
v
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
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
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
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
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
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
xi
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.
1
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
ISSUE SIX:
Whether in the alternative HLF is entitled to reversal based on the arguments
raised by co-defendant-appellants.
3
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
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.
5
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.
6
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
7
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
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.
9
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
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
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,”
12
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
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
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.
15
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
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
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.
18
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
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.
20
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
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
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
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
(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
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
26
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).
27
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
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
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
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
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
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
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
34
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).
35
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
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.
37
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
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.
39
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
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
against two corporations and their corporate officers Rosenstock and Genser. 443
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
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
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).
43
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
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
45
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).
46
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
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).
48
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).
49
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
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
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
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
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
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
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
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
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
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
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
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
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
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
(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
RANJANA NATARAJAN
H. MELISSA MATHER
Pending admission in the Fifth Circuit Court
of Appeals
NATIONAL SECURITY CLINIC

UNIVERSITY OF TEXAS SCHOOL OF
LAW
Austin, TX 78705
64
Tel: 512-232-2698
Fax: 512-232-0800
Email: khuskey@law.utexas.edu
On the Brief:
Rachel Anne Fletcher, Law Student
Jonathan Chaltain, Law Student
John Rhoads, Law Student
Attorneys For Defendant-Appellant-Cross-

Appelle, Holy Land Foundation For Relief
And Development
65
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-Appellant-

Cross-Appellee, HOLY LAND
FOUNDATION FOR RELIEF AND
DEVELOPMENT
66
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-Appellant-

Cross-Appellee HOLY LAND
FOUNDATION FOR RELIEF AND
DEVELOPMENT
67
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 TEL. 504-310-7700
C LER K 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. USA v. Holy Land Foundation

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
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

Holy Land Foundation Corporate Entity Appeal

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

Consolidated with No. 08-10774

Consolidated with No. 10-10586

APPEAL FROM THE UNITED STATES DISTRICT COURT

KRISTINE A. HUSKEY NATIONAL SECURITY CLINIC

DATED: October 19, 2010

CERTIFICATE OF INTERESTED PERSONS

Court may evaluate possible disqualification or recusal.

1. United States of America.

19. Mysliwiec, Aaron

Dated: October 19, 2010 Respectfully submitted,

/s/ Kristine A. Huskey

Attorney for Defendant-Appellant-Cross-

REQUEST FOR ORAL ARGUMENT

The defendant-appellant-cross-appellee, HOLY LAND FOUNDATION FOR

RELIEF AND DEVELOPMENT, also known as HLF, respectfully requests oral

generated a lengthy record and a number of constitutional issues. Oral argument

benefit the Court.

CERTIFICATE OF INTERESTED PERSONS ........................................................ i

SENTENCED WITHOUT LEGAL REPRESENTATION ..........................55

315 F.3d 491, 492(5th Cir. 2002) ............................................................................59

443 F.3d 180, 184 (2d Cir. 2006)...................................................................... 45, 46

Brecht v. Abrahamson, 507 U.S. 619, 634–37 (1993) .............................................63

Brooks v. Tennessee, 406 U.S. 604, 612–13 (1972) ................................................23

Campbell v. United States, 122 U.S.App.D.C. 143 (1965) .....................................50

(5th Cir. 1994) ......................................................................................................41

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

Faretta v. California, 422 U.S. 806, 807 (1975) .....................................................22

Ferguson v. Georgia, 365 U.S. 570, 595–96 (1961) ...............................................23

Geders v. U.S., 425 U.S. 80, 92 (1976) ...................................................................23

Gideon v. Wainwright, 372 U.S. 335 (1963) ...........................................................21

Hamilton v. Alabama, 386 U.S. 52, 55 (1961) ........................................................23

Cir. 2003) .............................................................................................................10

Kentucky v. Stincer, 482 U.S. 730, 745 (1987)........................................................65

Mancorp, Inc. v. Culpepper, 802 S.W.2d 226 (Tex 1990) ......................................41

Mickens v. Taylor, 535 U.S. 162, 172 (2002) ..........................................................51

Pointer v. Texas, 380 U.S. 400, 405 (1965)...................................................... 65, 68

Powell v. Alabama, 287 U.S. 45, 69 (1932) ............................................................58

Strickland v. Washington, 466 U.S. 668, 692 (1994) ...................................... passim

Taylor v. Sturgell, 128 S.Ct. 2161, 2173-74 (2004) ................................................39

United States v. Gagnon, 470 U.S. 522, 526-27 (1985) ..........................................65

United States v. Lachman, 521 F.3d 12, 21 (1st Cir. 2008).....................................51

White v. Maryland, 373 U.S. 59, 60 (1963) (per curiam) .......................................23

Williams v. Kaiser, 323 U.S. 471, 475–476 (1945) .................................................23

18 U.S.C. § 2339B(a)(1) ..........................................................................................11

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

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

18 C.J.S. Corporations § 17 .....................................................................................41

Instructions for Defendant”) ................................................................................55

443 F.3d 180, 184 (2d Cir. 2006)...................................................................... 45, 46

Corporation”); ............................................................................................... 32, 53

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

with Rule 4(b) of the Federal Rules of Appellate Procedure.