GILMORE, et al v. PALESTINIAN INTERIM, et al, No. 1:2001cv00853 - Document 382 (D.D.C. 2014)
Court Description: MEMORANDUM OPINION to the Order granting Defendants' Motion for Summary Judgment. Signed by Judge Gladys Kessler on 7/28/14. (CL, )
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA REUVEN GILMORE, et al . Plaintiffs, Civil Action No. 1-853 (GK) v. PALESTINIAN INTERIM SELFGOVERNMENT AUTHORITY, et al . , Defendants. MEMORANDUM OPINION Plaintiffs are family members and the estate of Esh Kodesh Gilmore, a United States national killed in a shooting attack in East Jerusalem against October the Defendants, Authority ("PLO") on ("PA") and (collectively, Terrorism Act of 1991 30, 2000. They Palestinian the Interim Palestine "Defendants") ("ATA"), bring pursuant § case Self-Government Liberation 18 U.S.C. this Organization to 2331, et the Anti- ~' and related common law theories. This matter is before the Court on Defendants' Motion for Summary Judgment Motion, Opposition the entire record [Dkt. No. [Dkt No. herein, 285]. Upon 336-1], and Reply and for the consideration [Dkt. reasons No. stated Defendants' Motion for Summary Judgment shall be granted. of the 341], below, I . BACKGROUND A. 1 Factual Background Plaintiffs' family member Esh Kodesh Gilmore ("Gilmore") was a United States national who made his home in Mevo Modi'im, an Israeli neighborhood near the West Bank. 2. See SOMF at 1 ~~ 1- He was killed on October 30, 2000, in a shooting attack at a branch office of the National Insurance Institute East Jerusalem, where he worked as a security guard. ("NII") Id. at 2 in ~ 3. The Intifada, attack occurred at the beginning of the Second a period of sustained violence and unrest in Israel and Palestine. 2 According to an informational release issued by 1 The facts are drawn from the Plaintiffs' Counter-Statement of Material Facts to Which There Are Genuine Issues ("SOMF") [Dkt. No. 335-4] and accompanying exhibits. Resolution of this Motion turns entirely on whether certain items of evidence are admissible under the Federal Rules of Evidence, which is a matter to be determined solely by the Court and does not present any questions that would otherwise be submitted to a jury. See Fed. R. Evid. 104. Consequently, the Court includes facts that provide the basis for its evidentiary rulings, even if disputed. Other than the date, location, and fact of Gilmore's death, the facts are disputed unless otherwise stated. 2 According to a Report issued by the United States State Department, the "sustained violence between Israelis and Palestinians . . broke out" on September 28, 2000, and by the end of July, 2001, more than 6,000 serious incidents of violence in the West. Bank, Gaza, and Israel had been reported. See Second Corrected Declaration of Robert J. Tolchin ("Tolchin Decl. "), Ex. 64 (United States State Department Report on the .-2- the Israel Ministry was perpetrated by after noon, security a fired a guards of in sole 62 gunman who entered the waiting room, of Robert J. (IMFA webpage dated Sept. and prosecuted or SOMF ~ 4, it is the undisputed convicted anyone 23, that in fled Tolchin shooting NII shortly on foot. See ( "Tolchin Decl. [Dkt. 2013) Gilmore died upon arrival at the hospital. Although the number of shots at close range at the two Second Corrected Decl. Ex. ( "IMFA 11 ) , Foreign Affairs No. 11 ) , 333-21]. Id. the State connection of with Israel the neve.r attack, Plaintiffs believe the attack was planned and carried out by a terrorist cell consisting of officers in a PA security unit known as the Presidential Security Services, and members Complaint of an ("Compl. 11 ) armed ~~ PLO 17-30 faction called [Dkt. No. ~~ 26, Id. killed Forces 2002. by SOMF Israeli ~ Defense 27, ( IDF) "Tanzim. 11 Specifically, 1]. allege that the gunman who shot Gilmore was a named Muhanad Abu Halawa. or "Force 17, 28. 3 on or 11 See they Force 17 officer Abu Halawa was about March 5, 6. Status of the PLO Commitments Compliance Act ("PLOCCA 11 ) , Dec. 15, 2000 - June 15, 2001) at 2 [Dkt. No. 334-1 at 3]. 3 dated Due to the transliteration of his name from Arabic to English, the name Abu Halawa is sometimes written as "Muhannad Abu Halaweh 11 and "Muhand Abu Haliwa. 11 He was also known as "Muhannad Sa'eed Munib Deireia. 11 -3- Plaintiffs claim that "[b) etween September 2000 and his death in March 2002, a time period during which he was employed full-time much in if Presidential not most of Security /Force his time 17, executing Abu Halawa terrorist together with a mix of other PA and Fatah officers, operatives all of whom were convicted of numerous violent terrorist attacks [.]" further allege that, spent attacks leaders and carrying out SOMF at 8 <JI They 16 . in carrying out the attack at the NII, Abu Halawa acted under a direct order of Force 17 regional commander Mahmoud Damara and pursuant to a broad directive former Palestinian leader Yasser Arafat "to organize, execute widespread acts of terrorism Israel, Gaza and the West Bank." Plaintiffs' is plan and civilians in 23, 25, 28, 29. theory that Abu Halawa perpetrated the attack statements allegedly given to Israeli police by his associates. 4 The first a in <JI<JI by custodial is based Compl. against issued January large 18, part 2001, on two written Mustafa Maslamani ("Maslamani") 5 sets of statement of Tanzim member describing a conversation he had 4 Plaintiffs also rely on a passage from the book The Seventh War, How We Won and Why We Lost the War with the Palestinians (2004) ("The Seventh War") by Avi Issacharoff and Amos Harel and reports issued by the Israeli government, which are discussed in more detail infra. 5 Maslamani is sometimes referred to as "Misalmani." -4- with Abu Halawa According to in this a cafe in statement, Ramallah Abu on Halawa December told 30, 2000. Maslamani "that there were organizations that said that they had carried out attacks at [the] French Hill [area of Jerusalem] National Insurance Institute and that the one who did it was he himself, Tolchin Decl., Ex. 8 (custodial [it] and at the is not true, because Muhannad Abu Halawa." statement of Maslamani, See dated Jan. 18, 2001) at 1 [Dkt. No. 331-8]. At his deposition in December 2001, however, Maslamani repudiated this statement, and testified repeatedly that he knew "nothing" about the NII attack and that Abu Halawa "never told me about that subject." tr. 20, of Maslamani, 22, 27 [Dkt. See Tolchin Decl., dated Dec. No. 30, 342-1]. 2001) He Ex. 30 (deposition ("Maslamani Tr.") further testified at 19, that, although his name was on the January 2001 custodial statement, he 11; hadn't incorrect, signed id. it, at 22; id. at was written in it was and that he "didn't say anything to the police about" the NII attack. Maslamani was what Id. at 23. prosecuted for and convicted of involvement in other attacks against Israelis but was never prosecuted for or convicted of any involvement in the NII attack. 18-19. -5- See SOMF c:II The second set of custodial statements on which Plaintiffs rely consists of four separate written statements made by Force 17 officer Bashar Al Khatib ("Al Khatib") April 2002. statements first statement, Each of these given April 11, to Israeli police in is 2002, different. Al Khatib In the confessed involvement in the previously mentioned French Hill shooting and three other shooting participation in the incidents NII attack. (custodial statement of Al Khatib, but did See not Tolchin menti6n Decl., dated April 11, any Ex. 2002) 9 [Dkt No. 331-9]. In the second statement, given a day later on April 12, 2002, Al Khatib stated that he was "prepared to tell you what I did not say yesterday," and went on to say that, on a direct order and from Damara, he had accompanied Abu Halawa another individual named Omar Karan to East Jerusalem where the NII was located and served as a lookout while Abu Halawa carried out the attack on the NII. Tolchin Decl., Ex. 10 (custodial statement of Al Khatib, dated April 12, 2002) at 1-3 [Dkt. No. 331-10]. In his third statement, given April 23, 2002, Al Khatib recanted the April 12 statement in its entirety as it related to the NII shooting and denied any connection to that attack. Tolchin Decl., Ex. 11 (custodial statement of Al Khatib, -6- See dated April 23, statement 2002) to shooting [Dkt. the police attack Jerusalem, No. at the but this this attack and I I 331-11] said that national is not at I ("In 4 I previous participated insurance correct, my office in in the East did not participate in just stated this and I have no connection to this attack."). Finally, in his fourth statement, on April 24, 2002, Al Khatib again disclaimed all prior statements regarding the NII attack and gave attack. yet another version of his connection to the In this version, he wrote that Abu Halawa phoned him on October 30, 2000, to ask for assistance transporting a vehicle through an Israeli checkpoint. He stated further that when he met with Abu Halawa later that day, Abu Halawa told him that he (Abu Halawa), other had carried out individuals at commander Mahmoud Damara the an attack at direction ("Damara"). of the NII regional with two Force 17 See Tolchin Decl., (custodial statement of Al Khatib, dated April 24, 2002) Ex. 12 at 1-2 [Dkt. No. 331-12]. Like Maslamani, Al Khatib subsequently denied the truth of his custodial statements as they related to the NII attack. He testified at his deposition in this case that he provided the statements to Israeli police because "I was under torture, and I -7- was threatened regarding my wife and kids. So that was the only way out for me is to write this[.]" E (deposition tr. of Al Khatib, Tr.") had at 25:21-25 "any [Dkt. No. communication operation," he responded, dated Dec. 5, 2011) 330-5]. with Tolchin Decl., Ex. When asked whether he had Abu "No. ("Al Khatib Halawa Not not about once, " [the and NII] further stated that "the entire National Insurance case, we have nothing to do with it." Id. at 24:4-6, 28:11-13. Like Maslamani, Al Khatib was prosecuted and convicted for his involvement in another attack involving Israelis but was never prosecuted for or convicted of any involvement in the NII attack. B. On SOMF ~ 13. Procedural Background April 18, 2001, Defendants PA and PLO, former employees compensation for "Individual Gilmore's PA filed this action against as well as eleven of their current and (the common law theories. Defendants Plaintiffs death under Defendants"), the ATA seeking and various See generally Compl. and PLO and the Individual Defendants initially failed to answer the Complaint, prompting the Court to enter a default. On January 29, 2002, however, they appeared through counsel and moved to vacate their default and to dismiss -8- the Complaint pursuant to Fed. R. Civ. P. 12(b). the Motion to Vacate, After granting the Court denied Defendants PA and PLO' s Motion to Dismiss but granted the Individual Defendants' to Dismiss for lack of personal jurisdiction. Motion See Gilmore v. Palestinian Auth., 422 F. Supp. 2d 96 (D.D.C. 2006). Defendants PA and PLO then fired their attorneys and failed to file an Answer to the Complaint, prompting the Court to enter a second default against them on January 29, 2007 They subsequently 2007, filed a retained Motion to new counsel Vacate· the and, second which the Court granted on December 28, Palestinian Auth., 675 F. Supp. 2d then entered a two on entry 2009. 104, [Dkt. No. 111-13 92]. November of 15, default, See Gilmore v. (D.D.C. 2009) ("Gilmore I"). The parties discovery, and-a-half during which Plaintiffs took nine depositions, of which were non-party witness depositions to Convention Taking the Civil Hague or included Mater, Commercial the and Khatib, Insurance year period of December Ziad Damara, the Matters 2001 Wahadan; Abdel on ("Hague Karim December Aweis of 2011 Evidence Abroad Mahmoud depositions and and the in These Maslamani, ("Awe is") , Institute designee Ya' akov Aravot; -9- conducted pursuant Convention") . depositions the of eight of Al National June 2012 deposition of Israeli ("Issacharoff"), journalist Avi Issacharoff co-author of the book The Seventh War, Won and Why We Lost the War with the Palestinians How We ("The Seventh War"), which, as discussed infra, contains a passage implicating Abu Halawa as the gunman in the NII attack. On August 9, Summary Judgment, years of fact 2012, Defendants filed the instant Motion for arguing, discovery, inter alia, Plaintiffs' that after more than two only evidence to support their core theory that Abu Halawa killed Gilmore is inadmissible hearsay. See generally Defs.' Mot. Plaintiffs but instead, did not [Dkt. No. 285]. immediately on September 6, oppose Defendants' 2012, moved under Fed. 56(d) for additional time to complete discovery. Pls.' Mot. They for explained Relief that Pursuant they R. Civ. P. See generally to Rule 56 (d) [ Dkt. in were Motion the process of No. 2 90] . moving, in Israeli court, to compel Issacharoff to disclose the identity of sources who allegedly told him that Abu Halawa was the gunman in the NII attack. that an Id. at 1-2, 4, 6, 7-8, 10-11. extension of time was discovery has not started yet defendants' Halawa as necessary They also argued "because expert and plaintiffs will oppose claim that the existing statements identifying Abu the murderer are -10- inadmissible, with expert foundational testimony showing that they are admissible." at 10-11. 2, Plaintiffs' On September Motion for extended their time Judgment after until 19, Relief to the Pursuant oppose the 2012, to Defendants' completion of Court Rule Motion expert Id. granted 56(d) for and Summary discovery and Issacharoff's deposition [Dkt. No. 297]. Six months resume later, briefing on on March 19, their Motion for 2013, Defendants moved to Summary Judgment, noting that Plaintiffs had withdrawn their motion in the Israeli court to compel to was discovery Issacharoff standstill at a reveal his sources because and that Plaintiffs expert had not provided any expert disclosures [Dkt. No. 298]. While that motion was on pending, April 19' 2013, Plaintiffs filed a Motion to Compel Production of Late-Disclosed Documents camera [Dkt. the No. 303]. documents On June 6, Plaintiffs 2013, sought to after reviewing in compel, the Court denied the Motion to Compel and set dates for the completion of summary 6 judgment briefing Plaintiffs also documents on December treated as a motion 365]. See Gilmore v. No. 01-853, 2014 WL [Dkt. No. 314] . 6 Thereafter, on filed a "Renewed Motion to Compel" GIS 23, 2013 [Dkt. No. 352], which the Court for reconsideration and denied [Dkt. No. Palestinian Interim Self-Government Auth., 1193728 (D.D.C. Mar. 24, 2014) ("Gilmore .D_"). -11- October 2013, 1, Defendants' Motion Plaintiffs for Summary filed Opposition to No. On their Judgment [ Dkt. 32 9] . October 25, 2013, Defendants filed their Reply [Dkt. No. 341]. II. LEGAL STANDARDS A. The ATA The civil liability provision of the ATA states that any United States national who is injured "by reason of an act of international survivors, terrorism," or heirs," may or sue that in any individual's "district court "estate, of the United States and shall recover threefold the damages he or she sustains." 18 U.S.C. § 2333(a). An act of "international terrorism" is defined to include activities that: (A) involve violent acts life that are a violation United States or of any criminal violation if jurisdiction of the United or acts dangerous to human of the criminal laws of the State, or that would be a committed within the States or of any Statej (B) appear to be intended (i) to intimidate or coerce a civilian population; ( ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and (C) occur primarily outside the territorial jurisdiction of the United States or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce[.] 18 u.s.c. § 2331(1). -12- "In other words, to prevail [on a civil ATA claim], a plaintiff must prove that the defendant would have violated any one of a series of predicate criminal laws had the defendant acted within the jurisdiction of the United States." Parsons v. Palestinian Auth., ("Estate of Parsons II") . the territorial and prove that offense B. In addition, requirements set (D.C. Cir. 2011) the plaintiff must meet forth in Section 2331 ( ( 1) (C) the conduct constituting the predicate criminal satisfies 2331 (1) (B). 651 F.3d 118, 122 Estate of one of three intent requirements in Section the movant 18 U.S.C. § 2331 (1). Standard on Summary Judgm.en t Summary judgment establishes that should there be granted only is no genuine dispute if as to a material fact and that the case may be resolved as a matter of law. R. Ci v. might P. 56 (a) . affect the A fact outcome is "material" of the suit if a under Fed. dispute over it governing law; a dispute is "genuine" if the evidence is such that "'a reasonable jury could return a verdict for the nonmoving party.'" v. Powell, 433 F.3d 889, 895 (D.C. Cir. v. Liberty Lobby, Inc., 477 U.S. 242, 248 2006) that there -13- is an (quoting Anderson (1986)). A summary judgment movant may carry its "pointing out Holcomb initial burden by absence of evidence to support the nonmoving party's case." u.s. 477 317, 325 (1986). Celotex Corp. v. Catrett, The nonmoving party must then come forward with "evidence showing that there is a triable issue as to [each] element essential to that party's v. United States, Celotex Corp., cannot be by[] by or 473 F.3d 329, 335 477 U.S. at 322). is claim." (D.C. Cir. Arrington 2006) (citing "A party asserting that a fact genuinely disputed must support the assertion citing to particular parts of materials in the record" or "showing absence that the or presence of materials cited a dispute [.]" genuine do not establish Fed R. the Ci v. P. 56 (c) (1). The most court must favorable inferences in determinations Plumbing view any admissible evidence to the nonmoving its favor, or weighing Prods., Inc., and abstain the 530 party, draw from evidence. U.S. 133, in the all reasonable making Reeves 150 light credibility v. Sanderson (2000). If the nonmovant has presented competent evidence on which a reasonable juror could summary rule judgment in its must favor be on denied. each On element the of other its claim, hand, "[i]f evidence is merely colorable, or is not significantly probative, summary judgment may be 249-50 (citations granted." omitted); see Liberty Lobby, also Athridge -14- v. 477 U.S. Aetna Cas. at & Sur. Co., 604 "possibility F. 3d that a 625, jury 631 Cir. (D.C. might speculate (a 2010) in the mere plaintiff's favor" is not sufficient to defeat summary judgment). As the Supreme Court language of Rule 56(c) after adequate time party who fails stated in Celotex Corp., "the plain mandates the entry of summary judgment, for discovery to make a and upon motion, against a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." 477 U.S. at 322. C. As rest Evidentiary Principles our on Court of Appeals inadmissible Campaign Comm., Therefore, a F. 3d party observed, Gleklen evidence." 199 while has 1365, opposing "[v] erdicts v. 1369 Democratic (D.C. summary Cir. judgment cannot Cong. 2000). "is not required to produce evidence in a form that would be admissible at trial, the evidence still must be capable of being converted into admissible evidence." were otherwise, unnecessary Id. (emphasis in original) . "the objective of summary judgment - trials would be omitted). -15- undermined." Id. If it to prevent (citations In ruling on summary judgment motions, questions of evidentiary admissibility, not bound by the Rules of Evidence, See Fed. Evid. R. 104 (a). the court decides and in so deciding, is except those of privilege. pertaining Matters to the admissibility of evidence must be established by a preponderance of evidence. Daubert v. Merrell Dow Pharmas., Inc., 509 U.S. 579, 592 n.10 (1993). Under admissible the Federal unless an Rules of exception Evidence, applies. "hearsay" Fed. R. is not Evid. 802. Hearsay is an out-of-court statement offered to· prove the truth of the matter statement of asserted, a unless witness, a it party is a prior or admission, inconsistent deposition testimony offered under the circumstances set forth in Fed. Evid. Our 32. Court See Fed. of Appeals exception, hearsay admissible evidence summary judgment." Cir. 2007) R. is and Evid. 801 (c)- (d); has held not capable therefore Greer v. that, of Fed. R .. Civ. absent being "'counts an Consequently, 32. applicable converted for into nothing' Paulson, 505 F.3d 1306, 1315 (citation omitted). P. R. on (D.C. it is proper for the Court to rule on the admissibility of hearsay evidence in the context of a motion for summary judgment and to grant the -16- motion if it finds that Plaintiffs' proffered evidence consists only of inadmissible hearsay. As Daubert to expert testimony, v. Merrell Dow as the Supreme Pharmaceuticals, the Court trial held judge in also performs a "gatekeeping" function to ensure that such testimony "both rests on a reliable foundation and is relevant to the task at hand." u.s. 579, 597 (1993). 509 Thus, it is also proper for the trial judge "to screen out inadmissible expert testimony on summary judgment." Supp. 2d 414, 437 125 F.3d 55, 66 Strauss v. Credit Lyonnais, S.A., (E.D.N.Y. (2d Cir. 2013) 925 F. (citing Raskin v. Wyatt Co., 1997)). "This is true even if the exclusion of expert testimony would be outcome determinative." Id. (citing Gen. Elec. Co. v. Joiner, advance two sets 522 U.S. 136, 142-43 (1997)). III. DISCUSSION Defendants summary judgment: first, nonhearsay evidence to Halawa killed Gilmore; that of Plaintiffs support their and arguments second, in support of lack any admissible, lynchpin theory that Abu that even if Plaintiffs possessed admissible proof that Abu Halawa killed Gilmore, there is no basis under the ATA on which to hold Defendants liable for his conduct - vicariously or otherwise. -17- Because, as discussed below, Plaintiffs fail to identify any admissible evidence supporting their core theory that Abu Halawa killed Gilmore, and therefore cannot prevail on their claim, the Court need not and shall not reach Defendants' second set of arguments. A. Plaintiffs Fail to Identify Admissible Evidence to Support their Theory that Abu Halawa Killed GiLmore Plaintiffs do not disagree that, in order to survive summary judgment, they must produce admissible evidence that Abu Halawa killed Gilmore. possess four reports; types a ( 2) See Pls.' of passage evidence: in (1) the such They claim to Opp' n at 2. The book Israeli Seventh government War; ( 3) testimony given by Al Khatib at the military trial of Damara in 2009; and (4) also rely on the opinion of their expert, head and Plaintiffs Maslamani's 2001 custodial statement. Lieutenant Colonel, Alon former IDF department Eviatar, which Defendants argue is inadmissible under Federal Rule of Evidence 702. At the outset, the Court notes that, although Plaintiffs sought and received more· than a year-long extension of time to file their Opposition to the instant Motion, their Memorandum of Law contains only nine pages, is almost entirely devoid of any citations to their Statement of Undisputed Material Facts or the record, consists largely of conclusory assertions, -18- and, in many places, lacks any explanation whatsoever. As our Court of Appeals recently observed: In this circuit, it is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones. Two sentences of argument, a threadbare conclusion, and a handful of marginally relevant citations do not provide us with enough to adequately assess the strength of their legal conclusions. Allaithi v. Rumsfeld, No. 13-5096, 2014 WL 2575417, at *6 (D.C. Cir. June 10, 2014) (citing Davis v. Pension Benefit Guar. Corp., 1166-67 734 F.3d 1161, quotation marks omitted) . (D.C. Plaintiffs' Cir. 2013) (internal failure to properly cite or even to quote the documentary sources on which they rely in their Memorandum of Law is compounded by filed an overwhelming 2500-plus pages exhibits to their Opposition brief. Newspapers, 92 F.3d 560, 562 the fact that they of documents annexed as See Bombard v. Fort Wayne (7th Cir. 1996) ("It is not our function to scour the record in search of evidence to defeat a motion for summary judgment; we rely on the nonmoving party to identify with reasonable particularity the evidence upon which he relies."). 7 7 Defendants argue that approximately nineteen of Plaintiffs' ninety-six exhibits are inadmissible under Fed. R. Civ. P. 37(c) (1) because they were produced to Defendants for the first time in opposition to this Motion. See Defs.' Reply at 3 ~ 3. -19- With whether these observations Plaintiffs have in mind, the Court identified any admissible considers evidence to support their theory that Abu Halawa killed Gilmore. 1. Israeli Government Reports Plaintiffs first rely on two Israeli government "reports," which they claim "identify [] Force 17 and Abu Halawa as having executed the murder." Opp'n at 2. actually purport press to Spokesman." The Pls.' releases transmit appearing information Tolchin Decl. first ~ "report" on These "reports" are the from an IMFA webpage that unidentified "IDF 26. is captioned "Force 17 Background Material - March 2001." It does not even mention Abu Halawa but rather of accuses responsible for "shooting attack Damara "numerous in having directed terrorist Jerusalem, a terrorist attacks," in which a cell including a security guard was Defendants did not, however, support this assertion with an attorney affidavit, and Plaintiffs have not had an opportunity to respond to it due to the fact that Defendants made it for the first time on reply. For these reasons, and because Defendants do not rest on their Rule 37 (c) argument, but rather challenge all of Plaintiffs' evidence on its merits, the Court shall assume, for purposes of this Motion only, that the exhibits Defendants identified as late-produced are admissible. -20- killed and another wounded ( 30 October) . " See Tolchin Decl., Ex. 60 [Dkt. No. 333-19] . 8 The second "report" is captioned "Force 17 Terrorist Mohand Said Muniyer 5 Diriya - Mar 2002." It announces IDF' s assassination of Abu Halawa and claims that he was a "member of a Ramallah-based terrorist cell" who "personally took part in" a list of twelve attacks, including the NII attack. See Tolchin Decl., Ex. 61 [Dkt. No. 333-20]. Plaintiffs argue that these IMFA "reports" are admissible under Federal Rule of Evidence 803 ( 8), 9 which states record or statement of a public office is admissible if: that a ( 1) it sets out either "a matter observed while under a legal duty to report[]" or "factual investigation," and ( 2) findings from a legally authorized "neither the source of information nor other circumstances indicate a R. Evid. 803 (8) (A) (ii)- (iii), lack of trustworthiness." Fed. (B). Plaintiffs have not provided one iota of information as to how the material in the IMFA webpages was compiled or from what 8 Although Plaintiffs allege that Damara ordered or directed the NII attack, they have not attempted to prove the PA's responsibility for the attack through him alone. 9 Plaintiffs cite "Rule 803 ( 8) (C)," which, as Defendants rightly observe, does not exist. Defs.' Reply at 5. The Court assumes Plaintiffs meant to cite Rule 803(8) (A) and (B)! -21- As discussed, sources it is derived. the webpages purport to relay information from an "IDF Spokesman" but no information has been provided as to who that Spokesman is, where that person got his or her information, or for what purpose. Plainly, information, without knowing anything about the source of the the Court cannot conclude that it sets out matters personally observed by any Israeli official, no less one with a "legal duty authorized Mezain, to report," or factual investigation. 10 664 F. 3d 4 67, See, 4 97-507 inadmissible under Rule 803 ( 8) or how [the declarant] findings e.g., (5th Cir. United 2011) from States legally v. El- (holding reports absent information as to "where obtained the information," "circumstances under which the documents were created, of the authors a to prepare such documents, [or] the the duty the procedures and methods used to reach the stated conclusions"); Gill v. Arab Bank, PLC, official 10 893 reports F. Supp. of the 2d 542, 571 (E.D.N.Y. Israeli Security 2012) Agency (finding inadmissible This is especially true given that the State of Israel never prosecuted anyone for the NII attack and a police report detailing the Israeli Police department's investigation of the NII attack neither mentions Abu Halawa nor indicates that Israeli police made any factual findings related to the identity of the gunman. See Tolchin Decl., Ex. 59 (Israeli police report titled "Murder of Esh Kodesh Gilmore National Insurance Institute Offices-East Jerusalem," dated Nov. 22, 2000) [ Dkt. No. 333-18]. -22- under Rule 803(8) because, inter alia, they relayed "information of uncertain provenance"); cf. Estate of Parsons II, 134 (Tatel, concurring) J., (accepting 651 F.3d at assertions in public record authored by unknown source as true "would require piling inference (about the statement's author) reliability and knowledgeability of the upon inference (about when the statement was written) upon basis) akin more (about inference to the speculation statement's than to evidentiary reasonable fact- finding"). Further, Rule 8 03 ( 8) "is based on the notion that public . motivation records are reliable because there is a lack of on the part of the mechanically register Mezain, F.3d 664 at States v. Quezada, recording an official unambiguous 498-99 do other than factual matter." 1985) (quoting United (5th Cir. 1985)). Thus, (5th ·cir. 754 F.2d 1190, 1194 to El- as previously stated, the Rule requires that "neither the source of information nor trustworthiness." cannot draw recording other Fed. R. circumstances E~id. any conclusions officials when it indicate 803(8) (B). about lacks the any a lack of The Court obviously "motivation [ s]" information of the about whD those officials are, where they got their information, and under what circumstances. The complete absence -23- of such information "indicate[s] a lack of trustworthiness." R. Fed. Evict. 803(8)(B). In sum, admissible the Court concludes that the IMFA webpages are not under Rule 803 (8) and, therefore, do not create a genuine factual dispute that Abu Halawa killed Gilmore. 11 2. Next, Passage from The Seventh War Plaintiffs The Seventh War. rely on a passage in The passage states that, Issacharoff' s book after the attack at the National Insurance Institute, Abu Halawa "phoned Abdel Karim Aweis, a member of the General Intelligence apparatus from Jenin" and "told Aweis that he wanted to announce to the media that he assumed responsibility for the East Jerusalem attack on behalf of a new military wing of Fatah." [Dkt. No. and Awe is 333-12]. Tolchin Decl. Ex. 54 The passage further reports that Abu Halawa conferred on a name in which to announce responsibility for the attack and eventually settled on the name "Al Aqsa "since it Martyrs did not Brigades," contain which the name 11 Aweis allegedly Fatah," whose preferred "leadership Indeed, Plaintiffs had previously acknowledged that they were "not aware of any rule of evidence that would permit the admission at trial of the [ IMFA] statement [ s] . " See Pls.' Application for Issuance of a Letter of Request for Judicial Assistance Pursuant to the Hague Convention at 3 n. 4 [ Dkt. No. 213]. -24- feared being identified with attacks." Issacharoff testified that this Id. 12 At his deposition, account was based on an interview he conducted with Aweis in an Israeli prison in 2004. Plaintiffs concede, as they must, that to admit the passage as evidence that Abu Halawa killed Gilmore, they must establish a basis to admit each out-of-court statement embedded within it, namely: ( 1) Issacharoff' s written account, ( 2) Awe is' statements to Issacharoff at the interview in 2004, 13 and statement to Aweis after the NII attack. see Fed. R. Evid. 805 (3) Pls.' Abu Halawa's Opp' n at 3-4; (excluding "hearsay within hearsay" unless "each part of the combined statements conforms with an exception to the rule") . written account The Court shall not reach whether Issacharoff's is admissible because, as discussed below, 12 Earlier in the passage, the book identifies Abu Halawa as the gunman in the NII attack, but Plaintiffs do not seek to admit that portion. See Pls.' Opp'n at 3. 13 Defendants argue that there is no "statement" of Aweis because the book paraphrases rather than directly quotes the content of his conversation with Issacharoff. Defs.' Mot. at 21. Assuming, however, that Issacharoff's written account was admissible, the absence of a direct quote does not itself change the analysis under the hearsay rules. See Harris v. Wainwright, 760 F.2d 1148, 1152 (11th Cir. 1985) (testimony implying that declarant had furnished the police with evidence was hearsay although not retold verbatim); Keith v. Kurus, No. 3:08 CV 1501, 2009 WL 2948522, at *17 (N.D. Ohio Sept.. 11, 2009) ("Paraphrasing or not repeating the witness's statement verbatim does not exclude it from being hearsay.") (citations omitted). -25- Plaintiffs have not established a basis to admit the statements of either Abu Halawa or Aweis. i. Abu Halawa's Statement Plaintiffs argue that Abu Halawa's statement to Aweis "that he wanted to announce to the media assumed he that responsibility for the East Jerusalem attack on behalf of a new military wing of Fatah" is a statement against penal interest admissible under Rule 804 (b) (3). Rule 804 (b) (3) admissible if: testimony; and the (1) (2) declarant's great a provides the that an out-of-court declarant is statement is unavailable to provide the declarant's statement is "so contrary to proprietary or to tendency pecuniary expose the interest declarant or to had so civil or criminal liability" that "a reasonable person in the declarant's position would have made be true [.]" [it] only if the person believed it to Fed. R. Evid. 804 (b) (3). Because Abu Halawa is deceased, the meaning of Rule his very desire to 804 (b) (3). "assume he is "unavailable" within See Rule 804 (a) ( 4) . responsibility" for However, the NII attack suggests that he perceived public attribution for the attack to be in his interest, observed, "[u] nder not contrary to it. the perverse As other courts have assumptions -26- of terrorists, an armed attack on civilians reflects glory. such an attack is deemed a benefit, Taking 'credit' for Gill, not a detriment[.]" 893 F. Supp. 2d at 569; see also Strauss, 925 F. Supp. 2d at 449 ("While admitting to a violent attack on innocents typically is detrimental motives same a declarant's of terrorists reasoning; announcement the to NII are the Court to Aweis attack was far that a interests, the interests from typical.") . concludes publicity-seeking contrary to his perceived interests. Applying this that he would assume and Halawa's Abu responsibility effort Therefore, that was his for not statement is not admissible under Rule 804 (b) (3). ii. Aweis's Statements Plaintiffs make two arguments for admitting Aweis's out-ofcourt statements to Issacharoff, both of which are similarly unavailing. Vicarious Party Admission Plaintiffs admissible 80l(d) (2) (D). first vicarious a as argue That rule that party provides Aweis's statements admission that a under statement are Rule offered against an opposing party is not hearsay if it "was made by the party's agent or employee on a matter within the scope of that relationship and while it existed [. ] " -27- Fed. R. Evid. Thus, 801 (d) (2) (D). exception, to Plaintiffs establish must admissibility demonstrate both under that this Aweis was employed by the PA at the time of the interview with Issacharoff and that the statements concerned a matter within the scope of his employment. It is undisputed that Aweis served as an intelligence officer in the PA's General Intelligence Service ("GIS") between 1998 and 2002, when he was arrested by Israeli authorities. is further undisputed that, Issacharbff, Israeli prison attacks. 10. he was for at the time of his interview with serving his Plaintiffs argue, "multiple involvement See Eviatar Decl. It ~ in life a sentences" number of in an terrorist 61 [Dkt. No. 345]; Defs.' Reply at however, that he was still an employee of the PA at the time because the PA has a policy of promoting and paying its custody. officers while they are imprisbned in Pls.' Opp'n at 3-4. The Supreme Court has held that where, statute Israeli uses "the term 'employee' as here, without a rule or defining it," it should be construed to describe "the conventional master-servant relationship as Nationwide Mut. ( citations understood Ins. Co. v. omitted) . by common-law Darden, 503 U.S. For purposes -28- here, it agency 318, is doctrine." 322-24 (1992) sufficient to an employee is apply the simplest formulation of that doctrine: "[a] person employer) who works in the service of another person under an express or implied contract of hire, (the under which the employer has the right to control the details of work performance." BLACK'S LAW DICTIONARY 602 (9th ed. 2009). There is no evidence that Aweis performed any work or services for the PA while in prison. While he testified that he received payments from the PA while in prison, he stated that the payments came from the "Prisoners Club," not GIS, and there is no indication that he was required to perform any services in ord ¬r to recBive them. See Tolchin Decl., Aweis, dated Dec. 7, 2011) Ex. G (deposition tr. ("Aweis Tr.") of Abdel Karim at 21:23-24 [Dkt. No. 330-7]. Further, although the PA maintains a policy of promoting its officers who are imprisoned in Israeli custody, the evidence indicates that passage of time. such promotions ( "Q. A. Yes. automatically See Tolchin Decl.; Ex. Mahmoud Damara, dated Dec. 6] occur 6, 2011) F with the (deposition tr. at 8:20-9:17 [Dkt. No. So you were promoted while you were in jail, of 330- correct? And the reason is that our military ranks are subject to automatic promotion when the time factor matures. It's all computerized lists. -29- As long as you meet the standards, you get promoted."). was required to do anything, There is no evidence that Aweis or refrain from doing anything, order to receive the promotions. 14 not Consequently, the record does establish that he continued to be employed by the ~urposes of Rule 80l(d) (2) (D) in PA for at the time of his interview with Issacharoff. 15 Even served assuming out Plaintiffs Aweis multiple have not was life shown still employed sentences that his in Aweis's job functions an statements fall within the scope of that employment. that by included related to terrorist attacks generally, GIS Israeli to while he prison, Issacharoff There is no evidence gathering intelligence much less that the NII attack was the type of attack he would have investigated or did investigate. See Aliotta v. Nat' l R. R. Passenger Corp., 315 14 Indeed, Abu Halawa was promoted posthumously after his assassination, clearly indicating that the mere fact of a promotion does not imply the ongoing provision of services. See Tolchin Decl., Ex. 67 (Abu Halawa employment records) at 1 [Dkt. No. 334-6]. 15 Plaintiffs contend that "the rationale underlying F.R.E. 801 (D) (2) (d) [sic] is not the employee's provision of services to the employer but the employee's dependence on, and resulting loyalty to, the employer." Pls.' Opp'n at 3 (citing Nekolny v. Painter, 653 F.2d 1164, 1172 (7th Cir. 1981)). Loyalty may be one of the rationales underlying Rule 801{d) (2) (D), but loyalty alone does not suffice. The Rule requires that the employee have made the statement "while [the employment relationship] existed." Fed. R. Evid. 801 (d) (2) (D). -30- F . 3d 756, admission 7 62 ( 7th of cabin 2003 ) ( " [ T ] he sub j e c t rna t t e r of the [must] match the subject matter of the employee's job description."); F.2d 1560, Ci r . Wilkinson 1566-67 n.12 & steward's v. Carnival Cruise (11th Cir. employment 1991) did not Line_s, Inc., 920 (holding that scope include knowing whether door outside his work area was defective without a showing that "he [was] ordered to the area in question, or told of the problems with the doors in connection with his duties"). Plaintiffs rely on the Declaration of Majed Faraj, Intelligence for GIS, to officer it was Aweis' argue job, that by definition, information about terrorist activity, Gilmore." Faraj' s GIS as Pls.' Opp' n at Declaration merely an agency; "as 4 a PA Head of intelligence to learn and obtain such as the murder of Mr. (emphasis describes in original) . the general However, functions of it does not mention Aweis or anything about See Pls.' his specific position as an employee of GIS. Opp' n, Ex. 1 (Decl. of Majed Faraj) ! ! 4-6 [Dkt. No. 336-2]). Further, obtaining even information if about Issacharoff pertained to would assume Aweis' s the job NII attack, selecting a responsibility for included the name his learning statements and to in which Abu Halawa attack. There is no evidence that he and Abu Halawa ever discussed any intelligence -31- related to attack and no suggestion that his professional duties included media terrorist attacks. announcements To the contrary, wanted to take credit for the attack, for responsibility assigning Abu Halawa purportedly not as an officer of the PA, but on behalf of a "new military wing of Fatahi" suggesting that both activities men viewed independent their of conversation as relating to as PA responsibilities their employees. For all of these reasons, Plaintiffs have not shown that Aweis's statements are admissible as a vicarious party admission under Rule 80l(d). Statement Against Penal Interest Plaintiffs' statements is second argument that they were under Rule 804(b) (3). for the admission contrary to As discussed, his of Aweis' s penal interests to satisfy this exception, Plaintiffs must show both that Aweis is "unavailable" and that his statements criminal had liability "so that great a a tendency" reasonable to person expose in his him to position would not have made them unless believing them to be true. Fed. R. Evid. 804 (b) (3). Plaintiffs argue that Aweis is unavailable because "at his deposition in this case he -32- could not recall his conversations[.]" Pls.' Opp'n at 3. A declarant is considered to be "unavailable" if, among other things, he or she "testifies to not remembering the subject matter" of the prior statement. Fed. R. which Evid. 804 (a) (3). Plaintiffs do conversation they contend Aweis not, however, - the conversation with Issacharoff or the one with Abu Halawa. As Defendants point out, could not specify recall Aweis testified that he did remember his conversation with Issacharoff but could not recall specifically what he had told Issacharoff. In only any event, if the this declarant See Aweis Tr. at 40:20-24. definition of unavailability "applies is to 'subject matter'" of the statement, unable "i.e., if remember the 'he has no memory of the events to which his hearsay statements relate.' The fact that the witness does not remember making the statements themselves is irrelevant." F. 3d 1299, Lamonica v. Safe Hurricane Shutters, (11th 1317 Cir. 2013) (citations Inc., 711 omitted). Consequently, Aweis's inability to recall precisely what he said to Issacharoff does not render him unavailable under Rule 804(a) (3) so long as he remembered the underlying subject matter of which they spoke. Aweis did not Id. at 1317. testify to a lack of memory regarding the subject matter of his interview with Issacharoff, which was his -33- purported telephone conversation with Abu To the contrary, after the NII attack. Halawa immediately when asked whether he had ever discussed the NII shooting attack with Abu Halawa, answered definitively "No, testified that he had no no." Aweis Tr. knowledge he He also at 41:21. regarding the NII shooting and that he first met Abu Halawa in December 2001, more than one year after the NII attack and purported conversation took place. Id. at 41:4-17. Because Aweis did not testify to a lack of memory regarding the alleged conversation with Abu Halawa, rather that it never happened, ~' 2004) United States v. Uribe, but he is not "unavailable." 88 F. App'x 963, 964-65 (8th Cir. (holding that a declarant who "remembered what happened" is not "unavailable" under Fed. R. Evict. 804(a) (3)). Plaintiffs also have not shown that Aweis's statements were contrary to his penal First, interests. nothing about the statement implicates Aweis in actually perpetrating the attack; it merely gives him credit for helping to select the name in Second, at which Abu Halawa took responsibility for th ¬ attack. the time Aweis made the multiple life sentences, that he would be statements, he was already s ¬rving substantially diminishing the prospect deterred from making expose him to further criminal liability. -34- statements Third, that could as the Court has already observed, themselves with efforts by known terrorists to associate terrorist activities are not perceived to be against their interests and do not qualify under Rule 804(b) (2). See Gill, 893 F. Supp. 2d at 569; Strauss, 925 F. Supp. 2d at 44 9. In sum, even if the passage in The Seventh War qualifies as a recorded recollection of Issacharoff' s interview with Aweis, it is still inadmissible for two other reasons, namely that the hearsay statements Issacharoff's passage of both are account Aweis inadmissible. in The Seventh War and Abu cannot Halawa embedded Consequently, be used to prove in the that Abu Halawa killed Gilmore. 3. Next, Statements of Bashar Plaintiffs contend penalty of perjury at 2009, that "his ~ that Khatib Al Khatib Damar a's military trial statements and handwritten testified on under January 12, accounts to the Israeli police implicating Abu Halawa in the murder were true." Pls.' Opp'n at 4. under Rule They argue that this testimony is "admissible 801(d) (1) (A) because Khatib repudiated trial testimony in his deposition in this case." 16 that sworn Id. 16 Plaintiffs do not argue that Al Khatib's four custodial statements are independently admissible. Our Court of Appeals has observed that "statements made to investigating officials" -35- Rule 8 01 (d) ( 1) (A) of a witness. declarant Its applies to prior inconsistent statements "essential testifies at the requirements" are that trial [or " ( 1) the (2) the deposition]; declarant is subject to cross-examination concerning the statement; (3) the statement is present testimony; oath." and (4) inconsistent with his at *1 (D.D.C. Feb. 13, 2012) Defendants point [or her] the prior statement was given under United States v. Emor, No. 10-298 As [prior] (PLF), 2012 WL 458610, (internal citations omitted). out, Plaintiffs "seek to rely on a supposedly prior inconsistent statement without identifying the statement." Defs.' any portion of the Damara trial Plaintiffs have not cited to Reply at 14. admitted, accounts as they contend, to the Isra~li murder were true [ . ] " implicating Abu Opp'n at 4. of that transcript reveals none. hang their hat on a the you, prosecutor asked, everything that in which Al Khatib "that his statements and handwritten police Pls.' transcript Halawa Plaintiffs appear to brief portion of the transcript you have to the The Court's own review Instead, "[a] ccording in what I in which, understand said about Muhannad Abu from Halawa, are generally inadmissible under Rule 801 (d) (1) (A) unless made in the course of formal proceedings in which certain guarantees of reliability are present. United States v. Livingston, 661 F.2d 239, 242-43 (D.C. Cir. 1981) (citing cases). As noted, Plaintiffs have not shown that such guarantees of reliability were present during Al Khatib's interrogation. -36- about Bashir Nafa, Omar Ka'adan, everything is incorrect. is whatever is related to [Damara] Khatib answered "Yes." See Tolchin Decl., Ex. 18 correct but Correct?" and Al (transcript of military trial of Mahmoud Damara, testimony of Bashar Al Khatib) at ECF p. 18 [Dkt. No. 331-18]. During Al Khatib's deposition in 2011, did not confront Al Khatib with this explain it. Plaintiffs' counsel testimony or ask him to Plaintiffs' counsel asked Al Khatib only whether he had been questioned about his custodial statements at Damar a's trial. Tolchin Decl., Ex. E (Al Khatib tr.) at 29-31. He did not follow up by asking Al Khatib specifically about his one- word response to the prosecutor's question of whether everything he had said Ka'adan, in his prior statements and Abu Halawa was correct. about Bashir Nafa, Omar Because Rule 801(d) (1) (A) requires that a declarant be cross-examined about the specific statement sought to be introduced as inconsistent, alone is grounds Plaintiffs rely. Moreover, the exclude the 2009 testimony on which See Fed. R. Evict. 613(b), 801(d) (1). it is not at all clear that, prosecutor's understood to this failure himself question to be at Damara's affirming the in his response to trial, truth of statements implicating Abu Halawa in the NII attack -37- Al his Khatib prior (which is, of course, the only way in which that statement inconsistent with his testimony in this case). would be The prosecutor's question as to whether everything he had previously said "about Muhannad Abu Halawa, correct" directly about followed Bashir testified Omar Ka'adan, related to questioning other than the NII attack. 17 Khatib Nafa, an [was] incident Earlier in the same examination, Al and that testimony was consistent with his testimony in this case. In particular, National specifically about when asked what he Insurance Institute in the NII attack, knew "about the attack at the East Jerusalem[,]" Al Khatib answered: The National Insurance Institute case has no connection to us. I was asked about this case. I was interviewed about it, and they were unable to prove anything and then they threatened that they would bring in my wife, I don't want to talk about the nastiness there. I did not confess to that, it had nothing to do with me and it is not in my record. 17 See Tolchin Decl., Ex. 18 (Damara Trial Tr. of Al Khatib) [Dkt. No. 331-18 at ECF p. 18] ("Q. Is it correct that in that same year, 2000-2001, you heard on the radio that there were confrontations with Israeli army forces in the Ein Arik area and you drove there with Nasser Nafez Darama, and then he got out and started shooting and you got angry at him? A: Correct, but these are his words, not mine. Q: But you said that to the police. A: In another case. Which is unrelated to this case . You are talking about something that happened eight years ago. Q: According to what I understand from you, everything that you have said about Muhannad Abu Halawa, about Bashir Nafa, Omar Ka' adan, everything is correct but whatever is related to the Defendant is incorrect. Correct? A: Yes.") -38- Tolchin Decl., Ex. 18 (tr. of military trial of Mahmoud Damara, testimony of Bashar Al Khatib) (emphasis added) . at ECF p. 16 When asked again about [Dkt. the No. 331-18] "attack at the National Insurance Institute in East Jerusalem," he responded "I have no connection to that" and further testified that he only signed the written statements "because they threatened to attack my wife." testimony Id. at at (emphasis 17 Damara's inconsistent, with his trial added). was testimony In sum, generally in this Al Khatib's consistent, case. His one not word response to a vague question by the prosecutor does not change that equation. Because inconsistent Plaintiffs testimony have at admissible under Rule shown Damara's cross examined him regarding not not such that trial, or testimony, 801 (d) (1) (A) and Al Khatib that the they gave ever testimony is cannot be used at trial to support their theory that Abu Halawa killed Gilmore. 18 4. Fourth, Statements of Mas1amani Plaintiffs rely on Maslamani' s January 18, 2001, custodial statement that Abu Halawa took credit for carrying out 18 Having so concluded, the Court need not address Defendants' argument that "the Hebrew transcript from the Damara trial . does not even contain statements of Bashar Al Khatib" because he "testified in Arabic and the statements in the Hebrew transcript are those of an IDF soldier serving as an interpreter." Reply at 14. -39- the Decl., 18, Institute. See Tolchin (custodial statement of Maslamani, dated January attack at Ex. the 8 2001) National Insurance at 1. admissible as a 804(b) (3). The Court disagrees. First, as Plaintiffs statement contend against previously that discussed, statement interest penal this under Rule against statement a is interest is only admissible if the declarant is "unavailable." See Fed. R. Evid. 804(b) (3). Plaintiffs do not identify a basis on which Maslamani is "unavailable" within the meaning of Rule 804, and none of the limited bases set forth under Rule 804(a) apply. Maslamani concerning the was NII deposed attack, in and this case, neither gave refused testimony to answer questions on that topic nor testified as to a lack of memory. See Fed. R. Evid. "unavailable." Cheyenne, Campbell 19 665 n.ll can never be under v. Consequently, See Grace United Methodist 451 F.3d 643, declarant exception 804 (a) (2)- (5) . 19 Rule Coleman 804 (b) (3) "); Co., 786 Church v. (10th Cir. 'unavailable' F.2d see 892, he 2006) is not City Of (a "deposed for purposes of an also 896 Campbell (8th ex Cir. rel. 1986) As discussed earlier, at his deposition, Maslamani repudiated the truth of this statement as it pertained to the NII attack and testified repeatedly that he knew "nothing about that subject" and that Abu Halawa "never told me about that subject." Maslamani Tr. at 19, 22. -40- (deposed declarant because that testimony, was not "subsection "unavailable" is concerned under with Rule the 8 04 (a) ( 5) absence of rather than the physical absence of the declarant") (citations omitted). Plaintiffs "unavailable" contend because that they did Maslamani not have nevertheless the opportunity is to redepose him after he purportedly agreed to the admission of his January 2001 custodial statement as evidence against him at his criminal trial in Israel in 2003. this was relevant, indicating that Plaintiffs Maslamani Pls.' do agreed Opp' n at 5. Even if any evidence not to cite the statement as it related to the NII attack, was never military charged. tribunal As quoted Defendants in its of his for which Maslamani point entirety admission out, the the portion "Israeli of the Misalmani custodial statement deemed admitted by consent, and it did not include the portion relating to the shooting of GilmoLe at the National Insurance Institute . Rather, it relates to the shooting of Talia and Binyamin Kahane, was convicted." (verdict) ) at for which Misalmani Defs.' Reply at 17 (citing Tolchin Decl., Ex. 7 5, 28-31). Nor do Plaintiffs explain why Maslamani's agreement to admit statements inculpating Abu Halawa at his criminal trial is sufficiently relevant to this case that -41- their inability to redepose him on the subject renders him "unavailable. " 20 Second, point out, even if Maslamani was unavailable, as Defendants the part of his statement implicating Abu Halawa in the NII attack was exculpatory, not inculpatory. Maslamani did not confess any responsibility for the NII attack; he blamed Abu Halawa. As the Supreme Court has held, Rule 804(b) (3) "does not allow admission of non-self-inculpatory statements, even if they are made within inculpatory." a broader narrative 3 is generally self- Williamson v. United States, 512 U.S. 594, 600-01 (1994); see also Fed. R. Evid. exception that ("[A] statement 804, Advisory Committee Notes to admitting guilt and implicating another person, made while in custody, may well be motivated by a desire to curry favor with the authorities and hence fail to qualify as against interest."). Because Maslamani is available and his testimony about the NII 20 attack was not contrary to his penal interests, his Plaintiffs argue that, under operation of Israeli military law, Maslamani's admission of the statement "constituted an endorsement by Maslamani of all the facts contained in the statement." Pls.' Opp' n at 5. Even if this is true, and even if Maslamani agreed to the admission of the entire statement as opposed to mere_ly the portions pertaining to the attack for which he was convicted, Plaintiffs do not explain how the legal consequences of that admission under Israeli military law is relevant to the admissibility of the statement under the Federal Rules of Evidence. -42- custodial statement is not admissible under Rule 8 04 (b) ( 3) cannot be used at trial to prove that Abu Halawa and killed Gilmore. 21 5. The Expert Opinion of Alon Eviatar Fifth and finally, witness, Affairs, that it is Alon "more Eviatar, likely who than Halawa carried out the October 30, opines, not, that among other Muhanad Abu 2000 murder of Mr. Gilmore." See Corrected Decl. of Alon Eviatar No. as an expert former IDF intelligence officer and Department Head of Palestinian things, Plaintiffs have retained, ("Eviatar Decl.) ~ 33 [Dkt. Plaintiffs argue that even if none of the foregoing 345]. evidentiary items are Eviatar's admissible, opinion is governs the sufficient to take their case to a jury. Rule 702 of the Federal Rules admissibility of expert testimony. of Evidence It provides that a witness who is qualified as an expert may "testify in the form of an opinion specialized or otherwise if: (a) the expert's knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; sufficient facts 21 or data; (c) (b) the testimony is based on the testimony is the product of The Court also notes that even if Maslamani' s own statement was admissible, it is double hearsay because it merely recounts Abu Halawa' s own out.,-of-court statement, which the Court has already ruled is inadmissible. -43- reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case." Fed. R. Evict. 702. Defendants argue that Eviatar's opinion that Abu Halawa was "more likely than not" Gilmore's killer is inadmissible because he is "not expertise applying any particular methodology or to his review of inadmissible Plaintiffs' the specialized hearsay," but is merely "reviewing and weighing the evidence" in precisely the same manner as would an ordinary trier of fact. Reply at 19. 22 First, The Court agrees. Eviatar methodology he used has to not form his any identified To opinion. the particular extent the Court can discern a methodology supporting his conclusion that Abu Halawa was "more likely than not" Gilmore's murderer, it is his statement that, "[a]s a rule, the strength (likely accuracy) of an assessment or conclusion variables: ( i) the information and data; ( ii) and/or types of sources 22 nature the is a function and/or quality variety information and and of of three available diversity data; main and of the (iii) Defendants note that Plaintiffs did not identify Eviatar as an expert witness in their Rule 26 disclosures. Defs.' Reply at 4. However, they do not claim that his opinion is inadmissible on that basis. -44- cumulative experience and knowledge and intuition." and professional instincts Eviatar Decl. ! 32. Eviatar does not, however, even consider these variables in reaching his conclusion that "it is very likely, more likely than not, that Muhanad Abu Halawa carried out the October 30, 2000 murder of Mr. Gilmore." analysis is devoted Plaintiffs' His diversity of data[.]" entirely hearsay. evidence Declaration contains the and certainly to is no sources Id. ! 33. Instead, his explaining See reliable. discussion and/or why of types he id. "the believes !! 34-64. and information of variety and Nor does he explain how his "cumulative experience and knowledge" as an IDF intelligence officer, as opposed to commonsense and general deductive principles that any non-expert finder of fact would rely on, lead him to the conclusion that Abu Halawa was the likely murderer. Because Eviatar fails to consider the very factors he claims should be considered in determining "the strength {likely accuracy) applied" of an assessment or conclusion," he has not "reliably his own methodology to the facts of this therefore, his opinion does not satisfy Rule 702(d). Strauss, 925 F. '[u]nder Daubert Supp. and 2d at Rule 441 (" [I] t 702, expert -45- is case and, See, e.g., well settled that testimony should be excluded if the witness methodology."') is not actually applying [the] expert (citing United States v. Dukagjini, 326 F.3d 45, 54 (2d Cir. 2003)). Second, even if Eviatar had faithfully applied his own methodology, his analysis is based entirely on hearsay evidence that the Court has already ruled is inadmissible. 34-64. 23 c:n:c:n: Although an expert is Eviatar Decl. entitled to rely on inadmissible evidence in forming his or her opinion, the expert "must form his extensive [or her] experience own opinions by applying his and inadmissible materials." 197 (2d Cir. 2008) reliable a methodology United States v. Mejia, (quotation marks and [or her] to the 545 F.3d 179, internal citations omitted); see also Estate of Parsons I, 715 F. Supp. 2d at 33 ("Expert opinions may be based on introduction personal of 925 used an F. but factual knowledge.") Strauss, as hearsay, Supp. excuse to they may not assertions (citing 2d at Fed. 445 introduce 23 that R. (expert and be a conduit for the are not based on Civ. P. 56(e) (1)); "testimony cannot be summarize straightforward Eviatar also relies on two other sets of out-of-court statements Plaintiffs do not rely upon: Al Khatib's custodial statements and an April 2001 edition of Force 17's official magazine, Humat al-Areen. Eviatar Decl. c:Hc:H 34-64. -46- factual evidence that has not been admitted, such as a webpage that says 'Hamas carried out a suicide bombing'"). Eviatar has not hearsay materials consists applied any specialized knowledge to the on which he entirely of relies. deductions Instead, and his observations analysis that flow directly from the content of the hearsay statements and would be self-evident to a layperson. Khatib's than four his custodial deposition deposition, he spontaneous witness, complete, Eviatar as did it statements testimony "not in 51. his he suggests that Al should in seem and his was ~ Decl. For example, this to be case have statements he because been testimony was Likewise, believed a not to opines rather at his neutral or continuous or Israeli that police." Maslamani's custodial statement is reliable because it is "fairly detailed in respect to conveyed the the attacks." both the circumstances information to Maslamani, Id. ~ 56. These are in which Abu Halawa and the particulars of precisely generalized inferences that a lay person, the type of and the jury itself, could draw without any expert assistance. 24 24 The Court also notes that accepting assertions would require the suspension of example, he opines, without any explanation Khatib's custodial statements are more deposition testimony because Israeli police -47- some of Eviatar's common sense. For whatsoever, that Al reliable than his interrogations are Eviatar' s relies on discussion is similarly of the other evidentiary generalized. He states sources that he he has "followed" Issacharoff's work over the course of his career and "found him to be knowledgeable, thorough, unbiased and honest" and has "no reason to doubt" his account. Id. not, the however, opinion much provide less any relate facts it to regarding his specific He does 44. <:II basis of this experience and expertise. The closest experience as Eviatar an comes intelligence to drawing officer is on his his extensive self-serving conclusory statements that it is "likely" that the IMFA webpages "would not have been issued by the State of Israel unless Israeli authorities" had a "high degree of certainty" regarding the facts reported. Id. <:II 37. He opines .that this is so because the Israeli government takes "formal, public accusations of this type" as "very serious matters" that "place [] credibility on the line Israel's in the eyes of the international community" and carry the risk of "an unnecessary escalation of tensions with the Palestinians." Eviatar fails, that constrain Id. <JI<JI 35-36. however, to discuss the specific protections the IDF's and IMFA' s decision to publish "more personal, private and calm and less tense" than a civil deposition. Eviatar Decl. <:II 57. -48- intelligence information; satisfy IMFA' s the credibility in the quantum of evidence necessary to concerns the regarding international its maintaining avoiding and community unnecessary conflict with the Palestinians; from whom in the IDF the IMFA sources would on protocols have which or obtained the IDF processes the its information; would IMFA have and the relied; IDF would types and/or have of what used to confirm the accuracy of sources prior to publication. Because Eviatar' s opinion consists entirely of generalized and conclusory assertions that lack any basis in his specialized knowledge, the Court hearsay evidence practice that concludes without allows prohibiting hearsay." that applying "is simply any expertise [Plaintiffs] Mejia, he to whatsoever, circumvent 54 5 F. 3d at 197 repeating the a rules (quotation marks and internal citations omitted) . In sum, "principles the case, Eviatar' s [or] opinion is not based on any reliable methodology" reliably applied to the facts Daubert, 509 U.S. at 595, and does not draw on any specialized knowledge that would be helpful to the jury, required by Rule -2-2-4-1----(-2-G-1-2--)-. - 702. Williams v. -1-R-s-~eaEi-,- Illinois, of 132 S. Ct. as is 2221, l"le-merel-y---we±<jhs- ---t--he--ev-idenee----in- precisely the same way as would a trier of fact. -49- "It has long been the law in this Circuit that 'where the jury is just as competent to consider and weigh the evidence as is an expert witness and just as necessary conclusions therefrom, v. 674 F. Supp. 2d 175, 179-80 Varner, 138 F.2d 934, 935 States v. Boney, 977 testimony should F.2d 624, knowledge of laymen.") ; (8th "opined Cir. on 2009) the Wash. Cir. strength (D.C. extend usurped of draw the Metro. the Area Trans. (quoting Henkel 1943)); see also United Cir. to United States v. (expert to is improper to use opinion 628 not qualified (D.D.C. 2009) (D.C. ordinarily 377 it Evans v. evidence for the purpose.'" Auth., well 1992) matters Farrell, jury ("[Expert] within 563 F. 3d 364, function Government's the case when she and the credibility of its witnesses"). Consequently, Eviatar' s opinion is not admissible to prove that Abu Halawa killed Gilmore. 6. As Plaintiffs Have Not Presented Any Admissible Evidence that Abu Halawa Killed Gi1more discussed above, Eviatar's expert opinion is inadmissible and Plaintiffs' only other evidence that Abu Halawa killed Gilmore is on summary "sheer hearsay," which "'counts judgment." Greer, 505 F.3d at for nothing' 1315. Nor have Plaintiffs demonstrated that any of the evidence on which they rely is capable of being converted -50- into admissible evidence. Therefore, Plaintiffs have not identified evidence to bring their case to a any admissible jury on their foundational allegation that Abu Halawa killed Gilmore and summary judgment must be granted for Defendants. 25 B. Plaintiffs' Supplemental Plaintiffs supplemental Gilmore. do directly whether their claims also require proof that Abu Halawa killed address They argue solely that "the federal ATA claim requires plaintiffs to prove supplemental claims." not not Cla~s explain how more than Pls.' Opp' n at 8. their supplemental claims, elements quantum of the garden-variety However, Plaintiffs do proof differs on their nor do they suggest that such claims can prevail without proof that Abu Halawa killed Gilmore. Because the Court has presented any admissible concluded that Plaintiffs have not evidence Abu that Halawa killed Gilmore, and Plaintiffs have advanced no other basis to support 25 Defendants also argue that, even if Plaintiffs could prove that Abu Halawa killed Gilmore, they cannot prevail because the ATA does not permit civil lawsuits based on vicarious liability. Defs.' Mot. at 22-29. The ATA does not specify whether it permits actions based on vicarious liability and that issue is unresolved in this Circuit. See Estate of Parsons II, 651 F.3.d at 133 (Tatel, J., concurring) . Because the Court has already concluded that Plaintiffs fail to present any "proof concerning an essential element of [their] case," Celotex Corp., 4 77 U.S. at 323, it ~s unnecessary to reach this issue. -51- their supplemental claims, summary judgment shall be granted on these claims as well. IV. CONCLUSION For the foregoing reasons, Judgment shall be granted, its entirety. Defendants' Motion for Summary and the case shall be dismissed in An Order shall accompany this Memorandum Opinion. July 28, 2014 Copies to: attorneys on record via ECF -52-
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