Unindicted Co-Conspirator in Holy Land Appeals Case in Fight to Clear Name

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The Holy Land Foundation for Relief and Development, formerly the nation’s largest Islamic charity organization based in Dallas, Texas, and seven of its leaders were indicted in 2007 with providing “material support” to a terrorist organization, primarily to Hamas. We have posted up articles about the case. A 2008 trial resulted in convictions for all those indicted and with Holy Land being labeled as the “largest terrorism financing” Islamic group in the country. In 2009 its founders were given life sentences.

Beyond the forced collapse of this organization and the incarceration of its leaders, the U.S. Justice Department effectively branded 246 other individuals and organizations as “terrorist” sympathizers by listing them as “unindicted co-conspirators” in the case. One of those organizations was the Council on American-Islamic Relations (“CAIR”), the largest Muslim civil rights group in America. We posted an article here which dealt with the legal and reputational harm caused by the practice of the Government wrongfully naming unindicted co-conspirators.  Also included in this infamous list were the North American Islamic Trust (NAIT) and the North American Islamic Trust (NAIT).

The reputational harm done to CAIR and other Muslim civil rights groups listed in the Holy Land case was evident by the national media coverage which virtually linked them as “associates of terrorism” (here and here).The House Republican Conference in March 2007 urged House Speaker Nancy Pelosi to cancel an event on Capitol Hill sponsored by CAIR, calling the organization “terrorist apologists.” The reputational and political fallout continues to this day for CAIR. This past March Assistant U.S. Attorney Ronald Welch sent a letter to four members of Congress justifying CAIR being named an unindicted co-conspirator in the Holy Land case, saying the Justice Department has evidence that links CAIR to Hamas.

This latest action by the Obama Justice Department is consistent with its predecessor’s conduct in 2007 under the Bush administration of trying to associate every mainstream Muslim civil rights and charity group in America with terrorism. The Government in the Holy Land case filed a “pre-trial brief” with the federal court in Dallas setting forth what it claimed as “an overview of the case, the scope of the conspiracy [to support terrorism], and the different kinds of evidence that the government will seek to admit at trial and the evidentiary basis of that evidence.” Under a subsection titled “Breath of Conspiracy,” the Government charged:

“[T]he focal point of this case is the designated terrorist group Hamas … Although the indictment in this case charges the seven named individual defendants and the Holy Land Foundation for Relief and Development, it will be obvious that the defendants were not acting alone. As noted in the case summary, the defendants were operating in concert with a host of individuals and organizations dedicated to sustaining and furthering the Hamas movement. Several of the individuals who hold leading roles in the operation of Hamas are referenced by name in the indictment. A list of unindicted coconspirators is attached to this … brief.”

The attachment listed the 246 individuals and organizations, such as CAIR, as “Unindicted Co-Conspirators and/or Joint Venturers.” In addition to CAIR, the North American Islamic Trust(“NAIT”) was also listed as an unindicted co-conspirator and/or a joint venturer in the Holy Land case. The first Holy Land trial ended in a mistrial, and before the second trial could get underway, NAIT filed a motion with the court alleging that its inclusion in the case violated its Fifth Amendment rights. The group sought four forms of relief:

  • A public declaration that its rights had been violated;
  • Expungement of its name from any “public” document filed or issued by the Government which identified NAIT as an unindicted co-conspirator;
  • An injunction prohibiting the Government from identifying NAIT as an unindicted co-conspirator in any context not authorized by the court; and
  • Any other just and equitable relief the court decided was appropriate.

CAIR and other groups, such as the Islamic Society of North America, also petitioned the court in various ways to have their names stricken as unindicted co-conspirators and/or joint venturers in the case. Following the second Holy Land trial, which occurred more than two years after the list of unindicted co-conspirators as made public, the U.S. District Court that heard the Holy Land case issued a “sealed” order on NAIT’s motion, The court concluded that the Fifth Amendment rights of NAIT, as well as the other 245 named unindicted co-conspirators and/or joint venturers, had in fact been violated by the Government by so naming them such. The court, however, refused to expunge NAIT’s public listing as an unindicted co-conspirator/joint venture. Instead the court ordered that all documents filed in connection with the matter be placed under “seal.” NAIT appealed the district court’s ruling to the Fifth Circuit Court of Appeals, and on October 20, 2010 that court issued a mixed bag ruling. On the district court’s decision to seal the case, the Fifth Circuit held:

“Here, the district court did not explain why it chose to seal its opinion and order holding that NAIT’s rights were violated. Both NAIT and the Government suggest that the district court may have been trying to shield NAIT from further reputational harm related to its public naming in the case. Regardless of the intention behind the district court’s decision, however, its effect was to leave NAIT hamstrung in its ability to mitigate the damage done to its public identification as a possible coconspirator in the activities of HLF Defendants. NAIT was publicly identified in Attachment A for over two years, and the public took note. The district court’s order and opinion included the important context that NAIT’s public naming had been held to be in violation of its Fifth Amendment rights. NAIT’s interests, therefore, would have been better served by leaving the order unsealed. The Government had no compelling interest in sealing the order and in fact does not object to unsealing it.

“Because the power to seal court records must be used sparingly in light of the public right to access, because NAIT’s interesting in mitigating its reputational injuries favored disclosure, and because there is no countervailing Government interest in nondisclosure, the district court’s decision to seal its opinion and order finding that NAIT’s rights were violated constituted an abuse of its discretion.”

The Fifth Circuit then addressed the issue of whether the entire sealed record should be expunged. While the Fifth Circuit acknowledged that it had in other cases found expungement “is sometimes an appropriate remedy” where individuals or entities have been improperly named as unindicted co-conspirators, the appeals court said it was not prepared to extend that “appropriate remedy” to NAIT. The Fifth Circuit explained why:

“Just as the context of a party’s naming as a possible co-conspirator is relevant to whether the naming was wrongful and whether it should be sealed, context is relevant to whether the naming of a party should be expunged. The allegations against NAIT were not raised in an indictment or in a factual resume offered during a plea proceeding, but rather in a Government brief in a fully contested case. Although NAIT appears to have been mentioned in anticipation of a possible Rule 801(d)(2)(E) dispute, no actual Rule 801(d)(2)(E) dispute determination involving NAIT was ever made. It should be clear, therefore, that NAIT’s inclusion in the brief was simply an untested allegation of the Government, made in anticipation of a possible evidentiary dispute that never came to pass. The allegation did not improperly enjoy the imprimatur of grand jury approval, nor was it erroneously conceded, implicitly or explicitly, as part of any plea. The allegation was offered in furtherance of a legitimate purpose—albeit a purpose that could have been equally well-served by filing Attachment A under seal … It is clear that the Government’s procedural error, therefore, was its failure to file Attachment A under seal, not its decision to try to characterize the scope of the charged conspiracy or to lay the groundwork for relying on Rule 801(d)(2)(E). In light thereof, the district court did not abuse its discretion in declining to expunge the mention of NAIT in the newly sealed attachment.”

In other words, the Government violated NAIT’s constitutional rights but it did so in pursuit of a legitimate purpose; that the Government’s conduct was simply a “procedural error.”

NAIT also argued before the Fifth Circuit that while the district court concluded that the group’s Fifth Amendment rights had been violated by the Government’s wrongful naming of it as a possible co-conspirator/joint venturer, the court engaged in “erroneous and irrelevant” analysis which linked NAIT to the Holy Land defendants. Specifically, NAIT objected to the district court’s conclusion that there was “ample evidence to establish the association of … NAIT with HLF, the Islamic Association of Palestine (“IAP”), and Hamas.”

The appeals court reasoned that while the district court’s conclusion linking NAIT with the Holy Land defendants went “beyond what was relevant to any hypothetical evidentiary issue,” the district court did no harm because its finding did not “amount to a ruling that NAIT [actually] took part in a criminal conspiracy to support Hamas. In fact, the Government has gone so far as to argue that it never, in the course of this litigation, labeled NAIT a criminal coconspirator. The Government argues that it only asserted that NAIT was at least a ‘joint venturer’ with the defendants … One can qualify as a ‘joint venturer’ for the purposes of Rule 801(d)(2)(E) merely by engaging in a joint plan—distinct from the criminal conspiracy charged—that was non-criminal in nature … Therefore, even if NAIT could have been accurately characterized as a joint venturer, that characterization does not carry an inherently criminal connotation.”

The appeals court thus declined to vacate the district court’s conclusion that implied in a criminal proceeding that NAIT had an association with the Holy Land defendants and Hamas, a designated terrorist group. What impact the Fifth Circuit’s ruling in the NAIT case will have on the other 245 unindicted co-conspirators/joint venturers remains unclear. What is clear is that Fifth Circuit placed NAIT over a double-edged sword: that the district court unseal the ruling that NAIT’s Fifth Amendment rights had been violated, a ruling significantly undermined by its unsupported conclusion linking NAIT to the Holy Land defendants and a designated terrorist group.

Does anyone really believe that being included on a “List of Unindicted Co-conspirators and/or Joint Venturers” with an organization found guilty of giving material support to Hamas does not carry a criminal connotation?

CAIR appears to be left holding the proverbial bag. It apparently did not join the NAIT in its appeal to the Fifth Circuit—and it is evident that the political witch-hunt has placed CAIR in a much harsher light than NAIT. The Obama Justice Department apparently shares the same view with most conservative right-wing Republicans that CAIR is a group of “terrorist apologists”—a view expressed without a shred of real evidence being placed in the public record to support it. The Government certainly did not present any evidence during the Holy Land trials that implicated either NAIT or CAIR, or any of the other 244 unindicted co-conspirators/joint venturers, with providing any kind of material support to designated terrorist group.

This post-9/11 era of the United States Government casting all Muslim groups in America as “terrorist apologists” will take its place along with The Crucible and McCarthyism as indelible stains on our democratic principles of government. And it is against the backdrop of that assertion that we consider the Fifth Circuit’s ruling in NAIT as nothing more than “legal lip-service” because the court deliberately stopped short of providing NAIT with the necessary remedies for clearing its name and restoring its reputation.  Apparently the court did not want to create even an appearance that it was also “soft on terror.”

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair