What if the Boy Who Cried Wolf Could Testify under a Pseudonym … as an Expert Witness on Canis Lupus?

What would the Daubert Hearing for "Shepherd X" look like?

“Major Lior” is the pseudonym for an Israeli Defense Force officer who testified in Dallas not long ago in what has been called the “largest terrorism financing investigation in American history.”  His name was pronounced “Major Lee-OR” at the trial.  Snarky commentators suggested that defense counsel should mispronounce his name to rhyme with “fire.”  After all, what defense counsel would not want to refer the jury to the testimony of a major liar?  But the joke exposed a real problem for the defense: how can you “attack a witness’s reputation for having a character for truthfulness or untruthfulness” under FRE 608 or engage in more typically frutiful areas of inquiry into credibility or expertise if — thanks to a court-sanctioned pseudonym — you don’t even know his name and must rely on your adversary for information in place of any investigative legwork of your own?

Last week, the Fifth Circuit handed down an important opinion upholding the convictions in that case.  The unanimous and enormous (172 page) opinion written by Judge Carolyn King (joined by Judges Emilio Garza and James Graves) received virtually no media attention.  That’s strange, considering that the convictions that the court upheld concerned an international conspiracy to fund Hamas and the defendants once ran the largest Muslim charity in the United States.

But the silence is stranger still when you consider the importance of the issue (one of many) before the court: Did the district court deprive the defendants of their rights to due process and to confront witnesses against them when it allowed two witnesses to testify using pseudonyms?  As far as I know, such a practice would be unusual but not entirely unprecedented were it to concern the typical fact witness.  Children, informers, and undercover agents are sometimes allowed various levels of shielding from the ordinary requirement of fully public testimony in a completely open court.  But these witnesses were far from ordinary.  Both were officers in the Israeli Defense Force.  “Major Lior” was a fact witness whose role was to authenticate documents obtained by the IDF during a military operation.  The other, “Avi,” testified as an expert witness, providing his opinion to the jury about the financial structure of Hamas.

After the break, I’ll give some background on the case and then explore the appellate court’s conclusion that this testimony worked no constitutional injury.  Given that the Supreme Court granted only 1.1% of the petitions for review last term, I doubt that the appeal will go any farther.  But I think it should and, though I certainly would give no quarter to Hamas or its allies, I think the use of these anonymous witnesses violated the defendants’ rights.

The Holy Land Foundation (HLF) was once a thriving organization operating out of Richardson, Texas, just north of Dallas.  The Government charged that HLF was no charity at all, but rather engaged in the criminal enterprise of funneling millions of dollars to Hamas.  Money is fungible, the United States argued, and even if money were being sent to Hamas-run schools or hospitals alone, those donations would simply free money to be spent on the other side of Hamas’s ledger, for suicide bombings and other terrorist attacks.  It was a winning argument, although the first jury trial ended in a mistrial and the second jury trial took six weeks to reach the convictions at issue in the case. 

Considerable time and treasure went into this prosecution, which was part of a multi-stage, decade-long effort by the United States to shut down financing for Hamas.  Months after 9/11, HLF was declared to be a specially designated terrorist under the International Emergency Economic Powers Act and all of its assets blocked by order of a special component of the Department of the Treasury, the Office of Foreign Asset Control.  This followed FISA authorized surveillance and wiretaps that started in 1994.  HLF had been fighting, and losing, the legal battle over those actions when the defendants were indicted in 2004.  Judge King’s opinion affirmed the convictions of HLF’s leadership on multiple counts of conspiring and violating the material support statute (18 U.S.C. § 2339B), the IEEPA provisions concerning transactions with Hamas, money laundering, and tax offenses.  The defendants received sentences ranging between 15 and 65 years.

One needn’t have any opinion about the guilt of these defendants to worry about the use of anonymous witnesses to convict them.  This is especially of concern when it comes to the (to my knowledge) unprecedented use of an anonymous expert witness.  Expert witnesses, once qualified as such, are allowed under Federal Rule of Evidence 704 to testify about their opinions regarding an ultimate issue (except for a criminal defendant’s mental state as an element of the offense).  And, of course, they are presented to the jury with the imprimatur of the court qualifying them to do so. 

Judge King and her colleagues did not share these concerns of mine.  The court reviewed these constitutional claims de novo, unwilling to  reverse the lower court unless the defendants were clearly prejudiced.  The court began by distinguishing a 1968 precedent, Smith v. Illinois, that reversed a trial court’s decision to permit a fact witness to testify under a pseudonym about buying drugs from the defendant.  Justice Stewart, writing for himself and seven others, observed that “when the credibility of a witness is in issue, the very starting point in exposing falsehood and bringing out the truth through cross-examination must necessarily be to ask the witness who he is and where he lives.  The witness’ name and address open countless avenues of in-court examination and out-of-court investigation.  To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.”  

But according to the Fifth Circuit, Smith was easily distinguishable, a simple conflict of the he-said-she-said variety, in which “the only real issue at trial” was the credibility of the would-be anonymous drug buyer.  HLF was much more complex and multi-faceted, with issues of classified information and witness safety to consider.  But surely the logic of Smith applies especially to an expert witness, whose opinion ultimately will be accepted or rejected by the jury based on jurors’ evaluation of his credibility.  It may not matter much that the Government “disclosed to the defense over twenty volumes of material that Avi used to formulate his expert opinion about Hamas financing” if Avi has a reputation for exaggeration, false accusations, or other falsehoods that defense counsel could discover.

Satisfied that the defense was given ample access to all the information relied upon by Major Lior and Avi, the court conducted a balancing test to see if that was enough.  Courts tend to give great weight to government assertions of “national security,” especially in terrorism trials, and  that is what happened here.  Emphasizing what the defendants were allowed to know, the court gave short shrift to the “most rudimentary inquiry” that the defendants wanted to be allowed to conduct.  The court concluded that even if the witnesses’ true identities were disclosed to the defense, it was “unlikely [since they were classified] that anyone who knew the witnesses’ true names could or would discuss them with defense counsel.”  

On what basis the court reached this speculative conclusion is left unstated.  The Fifth Circuit cited two other cases to support pseudonymous testimony.  The first, United States v. Celis, 608 F.3d 818 (D.C. Cir. 2010), upheld the use of pseudonyms  to prevent retaliation by Columbian drug cartels who threatened to kill cooperating witnesses.  But even the Fifth Circuit conceded that the Celis court “allow[ed] defense counsel to learn the true names of the witnesses for investigative purposes only days before the testimony was to be given at trial.”  No such luck for the Holy Land defendants.  The second was a ruling by a trial court in United States v. Marzook, 412 F.Supp.2d 913 (N.D. Ill. 2006).  The Fifth Circuit does not quote its analysis because the opinion contained no analysis of the Sixth Amendment issue presented by anonymous testimony.  Perhaps it was cited for moral support.

Also unstated is any response by the court to the defendants’ assertion that the Government did not have to call Avi as an expert witness at all.  The defense noted in its appeal that the Government had noticed another person as an expert witness who could testify on the same subject and “whose identity was not classified” by anyone.  This left me to wonder why a court should not weigh in the balance “the probable value, if any, of additional or substitute” safeguards  (just as one would do in a Mathews v. Eldridge-style balancing about procedural due process).  After all, shouldn’t there be some weight given to the lack of necessity to balance the defendants’ constitutional rights at all?

 I wonder what life this opinion will lead?

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1 Response

  1. JB says:

    Thanks for the post on this important case. It is not a normal thing in American courts for a witness to testify under a pseudonym and this case should get the attention of the U.S. Supreme Court (although whether it does is another matter). Reading the opinion, it seems the Fifth Circuit makes a critical move in interpreting the Court’s few precedents in the area. As you note, the Fifth Circuit distinguishes a case that seems very much on point, Smith v. Illinois, and relies on another case Roviaro for the principle that disclosure of a witness’s identity comes down to a discretionary balance of “the public interest in protecting the flow of information against the individual’s right to prepare his defense.” But imagine the possibilities if the identity of a testifying witness can truly be kept secret whenever the “public interest” so requires (cue Scalian outrage . . . .). And, interestingly, Smith specifically says that Roviaro (and presumably its amorphous balancing test) is not “relevant” where, as in this case, “the informer [is] a witness for the prosecution.”