## Facts

- Holy Land Foundation for Relief and Development (HLF), a Texas charitable corporation, raised substantial funds for humanitarian aid related to Palestine.
- The United States alleged HLF and five officers/directors used the charity to provide material support to Hamas, a designated terrorist organization.
- Hamas was designated a Specially Designated Terrorist in 1995 and a Foreign Terrorist Organization in 1997.
- The alleged scheme involved routing money to zakat committees and other local charities in the West Bank and Gaza that performed some legitimate services but were alleged to be controlled by Hamas as “social institutions.”
- The prosecution did not charge the defendants with planning or committing particular violent attacks; it focused on financial support that allegedly strengthened Hamas by increasing its influence and resources.
- The government used evidence including surveillance and searches conducted under FISA authorities, intercepted communications, seized documents, expert testimony regarding Hamas control of recipient entities, and witnesses whose identities were partially protected for security reasons.
- After a 2007 mistrial due to a hung jury, a 2008 retrial resulted in convictions of HLF and all individual defendants on most counts, including conspiracy and substantive material-support offenses.
- The defendants appealed convictions and sentences; the government filed a cross-appeal addressing aspects of sentencing and forfeiture.

## Issues

1. Whether the evidence was sufficient to prove that defendants knowingly conspired to provide, and did provide, material support to Hamas in violation of 18 U.S.C. § 2339B and related statutes.
2. Whether § 2339B was unconstitutional as applied, including under the First Amendment and for vagueness, when applied to charitable giving and association.
3. Whether admitting evidence derived from FISA surveillance without disclosure of applications and certain classified materials required suppression or dismissal.
4. Whether permitting testimony from partially anonymous or pseudonymous witnesses, and limiting disclosure of identifying information, violated the Sixth Amendment Confrontation Clause or due process.
5. Whether evidentiary rulings admitting expert testimony, documents, and other proof linking zakat committees to Hamas improperly admitted hearsay or unfairly prejudicial material.
6. Whether retrying defendants after a mistrial caused by a hung jury violated the Double Jeopardy Clause.
7. Whether sentencing and forfeiture determinations were erroneous, including issues raised in the government’s cross-appeal.

## Decision

- The Fifth Circuit affirmed the convictions and largely affirmed the sentences, concluding the defendants received a fair trial and that any identified errors did not warrant reversal.
- The court held the evidence permitted a rational jury to find defendants knowingly provided material support to Hamas, including through contributions to Hamas-controlled committees.
- The court rejected First Amendment and vagueness challenges to § 2339B as applied, relying in part on Supreme Court precedent recognizing that coordinated support to an FTO may be punished even if framed as benign assistance.
- The court upheld the district court’s handling of FISA materials, including ex parte, in camera review, and found no right to broader disclosure on the record presented.
- The court found no Confrontation Clause violation from limited anonymity measures where defense counsel retained a meaningful ability to cross-examine and test credibility.
- The court rejected double-jeopardy claims because the first trial ended in a hung-jury mistrial and retrial was permitted.
- On sentencing and forfeiture, the court made limited adjustments or clarifications but left the overall sentencing outcomes substantially intact.

## Legal Principles

- Under 18 U.S.C. § 2339B, the government need not prove funds were earmarked for violent acts; it is enough that a defendant knowingly provides support to a designated FTO or to entities the defendant knows are controlled by that FTO.
- Restrictions on providing material support to an FTO may be applied consistently with the First Amendment when the conduct involves coordinated or directed support that can legitimize the organization or free resources for other activities.
- Vagueness challenges to § 2339B fail where the FTO designation framework and the defendant’s knowledge of the group’s identity and status provide clear notice and constrain enforcement.
- FISA permits district courts to review surveillance applications and related classified materials ex parte and in camera; defendants are not entitled to access absent a showing that disclosure is necessary to assess legality.
- The Confrontation Clause permits limited protection of witness identity for security reasons when the defendant retains a meaningful opportunity to cross-examine and challenge credibility.
- A retrial after a hung-jury mistrial does not violate double jeopardy absent an acquittal or prosecutorial intent to provoke the mistrial.
- Evidentiary errors, including hearsay or expert-testimony concerns, do not require reversal if the appellate court concludes any error was harmless in light of the record as a whole.

## Conclusion

The Fifth Circuit upheld terrorism-financing convictions arising from a charity’s support of Hamas-linked recipient entities, holding that § 2339B reaches financial support routed through Hamas-controlled “social” organizations and rejecting constitutional, FISA-disclosure, confrontation, double-jeopardy, and most sentencing challenges.


United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011)