Publication of Unindicted Co-conspirator List in Holy Land Case Violated Due Process Rights, Court Rules

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April 22, 2011
Since 2004 the criminal prosecution of the Holy Land Foundation (HLF) and its leaders for material support of terrorism has been, and continues to be, a long running legal battle. One unusual twist has been a May 29, 2007 filing by the prosecution that listed 246 individuals and entities as "Un-indicted Co-conspirators and/or Joint Venturers." In a break with DOJ policies, the list was not sealed and the names, which included most major U.S. Muslim organizations, were made public. Both the trial court in Dallas and the Fifth Circuit Court of Appeals ruled that the release violated due process rights under the Fifth Amendment.
The government later told the Fifth Circuit that failure to seal the list was an "unfortunate oversight." [p. 3] Because of the high-profile nature of the HLF case, the list received widespread publicity and caused the FBI to break off communications with CAIR. The Fifth Circuit noted that:
"The evidence indicates that the release of the List subjected CAIR to annoyance, ridicule, scorn and the loss of reputation in the community. CAIR has been subjected to violent threats and has been made the subject of news stories and articles. It is reasonable to surmise that donations to CAIR have and will suffer as a result of the designation.” [p.10]
On Aug. 14, 2007 CAIR filed a motion with the trial court, the Federal District Court for the Northern Division of Texas, Dallas Division, which tried the case, seeking a ruling that its Fifth Amendment right to due process was violated because it was not formally charged and had no means of defending itself. It also asked that its name be removed from the list and for an order barring the government from identifying them as co-conspirators. The Islamic Society of North America (ISNA) and the North American Islamic Trust (NAIT) filed similar motions on June 18, 2008. 
The first trial of HLF and its leaders ended in a hung jury on Oct. 22, 2007. The case was re-tried, and the defendants were convicted on Nov. 24, 2008. The appeal is now pending before the Fifth Circuit.
On July 1, 2009 the District Court ruled that due process rights of CAIR, ISNA and NAIT were violated by publication of the list. The court ordered that the list and all related court filings, including its own opinion, be sealed. NAIT appealed to the Fifth Circuit, arguing that sealing the District Court's opinion "deprived NAIT of an effective remedy for the violation of its rights." [p. 4 Fifth Circuit opinion] The Fifth Circuit agreed, and ordered the District Court opinion unsealed on Nov. 11, 2010. The Fifth Circuit's opinion states that "The Government does not contest the holding that NAIT's Fifth Amendment rights were violated or that it should have filed the attachment under seal." [p. 2] The Fifth Circuit also cited the public's right to access judicial decisions. The pleadings in the case remain under seal.
Once unsealed the District Court opinion was revealed to be an unequivocal statement that CAIR, ISNA and NAIT's due process rights were violated. It noted that the list:
“is unaccompanied by any facts providing a context for evaluating the basis for the United States Attorney’s opinion.  Neither CAIR nor the other unindicted co-conspirators have been charged with a crime and they have no judicial forum in which to defend against the accusations…" [p. 10]
The District court noted that, “The Government has not argued or established any legitimate government interest that warrants publicly indentifying CAIR and 245 other individuals and entities as unindicted co-conspirators.” It went on to say:
"Evidence presented in a public trial is inherently different from the Government publishing a list of persons alleged to be co-conspirators. The public may make its own judgment from evidence presented at trial. The evidence may be examined and conclusions can be drawn as to whether the evidence establishes what the government claims it does. But a published list from the Government naming individuals and entities as co-conspirators without any supporting evidence is not subject to such scrutiny. Therefore, the Court finds it appropriate to seal the entire list…." [p. 19]
Although the District Court ruled that due process rights had been violated, it rejected the groups’ request to have their names removed from the list, saying the “Government produced ample evidence to establish the associations of CAIR, ISNA and NAIT with HLF” and other groups, including Hamas. It acknowledged that “the evidence produced by the Government largely predates” the date HLF was listed as a terrorist organization, but was “sufficient to show association…” [p. 15] It went to explain the details of the alleged associations, concluding that “maintaining the names of the entities on the List is appropriate in light of the evidence proffered by the Government.” [p. 15]
NAIT called the District Court’s analysis of the evidence erroneous and irrelevant. On appeal the Fifth Circuit said that the District Court did not abuse its discretion by denying NAIT's request to remove them from the list, but it criticized the evidentiary summary. Although the trial included “evidence tending to support some past ties between NAIT and the HLF” [p. 8] the court noted that:
"[t]he district court's findings do not amount to a ruling that NAIT 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 conspirator. The Government argues that it only asserted that NAIT was at least a 'joint venturer' with the defendants….One can qualify as a 'joint venture for the purposes of Rule 801(d)(2)(E) merely be engaging in a joint plan -distinct from the criminal conspiracy charge- 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." [p. 12] (emphasis added)
Government attorneys told both courts that the filing the list was a legal maneuver. By naming co-conspirators, the government could use out-of-court statements as evidence that would normally be inadmissible as hearsay. The rule, Federal Rule of Evidence 801(d)(2)(E), specifically states that such statements "are not alone sufficient to establish…..the existence of a conspiracy and the participation therein" of either the person the statement is attributed to or the defendants.
For example, the Fifth Circuit's opinion summarized the government's explanation as follows:
"The government explains that the inclusion of NAIT and other entities was intended to lay the groundwork for the possible admission of statements pursuant to Rule 801(d)(2)(E) of the Federal Rules of Evidence, which permits the admission of out-of-court statements by coconspirators and joint venturers of a party opponent.”  [p. 3]
The District Court’s opinion came to the same conclusion, saying:
“The Government has not cited any legitimate interest for publicly naming INSA and NAIT as unindicted co-conspirators. The Government originally included them on the List in order to use their statements under Fed.R.E. 801(d)(2)(E). (Mot. At 6-7) The Court finds that no legitimate interest existed to justify publicly naming ISNA and NAIT as unindicted co-conspirators…The Government had available less injurious means to accomplish its purpose.” [p. 12]
The ACLU, which represented ISNA and NAIT, issued a Press Release dated June 18, 2008, saying the prosecution told them it did not intend to pursue charges against either group. It said:
"The government conceded, however, that it had absolutely no evidence proving that either ISNA or NAIT had engaged in a criminal conspiracy. The lead prosecutor in the case told lawyers for the two organizations "that ISNA and NAIT were not subjects or targets in the HLF prosecution or in any other pending investigation." The prosecutor also acknowledged that the public labeling was simply a "legal tactic" intended to allow the government to introduce hearsay evidence against HLF later at trial."