Gilmore v. Palestinian Interim , 53 F. Supp. 3d 191 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
REUVEN GILMORE, et al .
Plaintiffs,
Civil Action No. 1-853 (GK)
v.
PALESTINIAN INTERIM SELF-
GOVERNMENT 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 on October 30, 2000. They bring this case
against Defendants, the Palestinian Interim Self-Government
Authority ("PA") and the Palestine Liberation Organization
("PLO") (collectively, "Defendants") pursuant to the Anti-
Terrorism Act of 1991 ("ATA"), 18 U.S.C. § 2331, et ~' and
related common law theories.
This matter is before the Court on Defendants' Motion for
Summary Judgment [Dkt. No. 285]. Upon consideration of the
Motion, Opposition [Dkt No. 336-1], and Reply [Dkt. No. 341],
the entire record herein, and for the reasons stated below,
Defendants' Motion for Summary Judgment shall be granted.
1
I . BACKGROUND
A. 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. See SOMF at 1 ~~ 1-
2. He was killed on October 30, 2000, in a shooting attack at a
branch office of the National Insurance Institute ("NII") in
East Jerusalem, where he worked as a security guard. Id. at 2 ~
3.
The attack occurred at the beginning of the Second
Intifada, 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
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the Israel Ministry of Foreign Affairs ( "IMFA 11 ) , the shooting
was perpetrated by a sole gunman who entered the NII shortly
after noon, fired a number of shots at close range at the two
security guards in the waiting room, and fled on foot. See
11
Second Corrected Decl. of Robert J. Tolchin ( "Tolchin Decl. ) ,
Ex. 62 (IMFA webpage dated Sept. 23, 2013) [Dkt. No. 333-21].
Gilmore died upon arrival at the hospital. Id.
Although it is undisputed that the State of Israel neve.r
prosecuted or convicted anyone in connection with the attack,
SOMF ~ 4, Plaintiffs believe the attack was planned and carried
out by a terrorist cell consisting of officers in a PA security
11
unit known as the Presidential Security Services, or "Force 17,
11
and members of an armed PLO faction called "Tanzim. See
Complaint ("Compl. 11
) ~~ 17-30 [Dkt. No. 1]. Specifically, they
allege that the gunman who shot Gilmore was a Force 17 officer
named Muhanad Abu Halawa. Id. ~~ 26, 27, 28. 3 Abu Halawa was
killed by Israeli Defense Forces ( IDF) on or about March 5,
2002. SOMF ~ 6.
Status of the PLO Commitments Compliance Act ("PLOCCA 11 ) , dated
Dec. 15, 2000 - June 15, 2001) at 2 [Dkt. No. 334-1 at 3].
3
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
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Plaintiffs claim that "[b) etween September 2000 and his
death in March 2002, a time period during which he was employed
full-time in Presidential Security /Force 17, Abu Halawa spent
much if not most of his time executing terrorist attacks
together with a mix of other PA and Fatah officers, leaders and
operatives all of whom were convicted of carrying out
numerous violent terrorist attacks [.]" SOMF at 8 id. at 11; what was written in it was
incorrect, id. at 22; and that he "didn't say anything to the
police about" the NII attack. Id. at 23.
Maslamani was 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. See SOMF c:II
18-19.
-5-
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") to Israeli police in
April 2002. Each of these statements is different. In the
first statement, given April 11, 2002, Al Khatib confessed
involvement in the previously mentioned French Hill shooting and
three other shooting incidents but did not menti6n any
participation in the NII attack. See Tolchin Decl., Ex. 9
(custodial statement of Al Khatib, dated April 11, 2002) [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 from Damara, he had accompanied Abu Halawa and 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. See
Tolchin Decl., Ex. 11 (custodial statement of Al Khatib, dated
-6-
April 23, 2002) [Dkt. No. 331-11] at 4 ("In my previous
statement to the police I said that I participated in the
shooting attack at the national insurance office in East
Jerusalem, but this is not correct, I did not participate in
this attack and I 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 yet another version of his connection to the
attack. 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), had carried out an attack at the NII with two
other individuals at the direction of regional Force 17
commander Mahmoud Damara ("Damara"). See Tolchin Decl., Ex. 12
(custodial statement of Al Khatib, dated April 24, 2002) 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
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was threatened regarding my wife and kids. So that was
the only way out for me is to write this[.]" Tolchin Decl., Ex.
E (deposition tr. of Al Khatib, dated Dec. 5, 2011) ("Al Khatib
Tr.") at 25:21-25 [Dkt. No. 330-5]. When asked whether he had
had "any communication with Abu Halawa about [the NII]
operation," he responded, "No. Not not once, " and 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. SOMF ~ 13.
B. Procedural Background
On April 18, 2001, Plaintiffs filed this action against
Defendants PA and PLO, as well as eleven of their current and
former employees (the "Individual Defendants"), seeking
compensation for Gilmore's death under the ATA and various
common law theories. See generally Compl.
Defendants PA 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). After granting
the Motion to Vacate, the Court denied Defendants PA and PLO' s
Motion to Dismiss but granted the Individual Defendants' Motion
to Dismiss for lack of personal jurisdiction. 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 [Dkt. No. 92].
They subsequently retained new counsel and, on November 15,
2007, filed a Motion to Vacate· the second entry of default,
which the Court granted on December 28, 2009. See Gilmore v.
Palestinian Auth., 675 F. Supp. 2d 104, 111-13 (D.D.C. 2009)
("Gilmore I").
The parties then entered a two and-a-half year period of
discovery, during which Plaintiffs took nine depositions, eight
of which were non-party witness depositions conducted pursuant
to the Hague Convention on the Taking of Evidence Abroad in
Civil or Commercial Matters ("Hague Convention") . These
included the December 2001 depositions of Maslamani, Mahmoud
Mater, and Ziad Wahadan; the December 2011 depositions of Al
Khatib, Damara, Abdel Karim Aweis ("Awe is") , and National
Insurance Institute designee Ya' akov Aravot; and the June 2012
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deposition of Israeli journalist Avi Issacharoff
("Issacharoff"), co-author of the book The Seventh War, How We
Won and Why We Lost the War with the Palestinians ("The Seventh
War"), which, as discussed infra, contains a passage implicating
Abu Halawa as the gunman in the NII attack.
On August 9, 2012, Defendants filed the instant Motion for
Summary Judgment, arguing, inter alia, that after more than two
years of fact discovery, Plaintiffs' only evidence to support
their core theory that Abu Halawa killed Gilmore is inadmissible
hearsay. See generally Defs.' Mot. [Dkt. No. 285].
Plaintiffs did not immediately oppose Defendants' Motion
but instead, on September 6, 2012, moved under Fed. R. Civ. P.
56(d) for additional time to complete discovery. See generally
Pls.' Mot. for Relief Pursuant to Rule 56 (d) [ Dkt. No. 2 90] .
They explained that they were in the process of 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. Id. at 1-2, 4, 6, 7-8, 10-11. They also argued
that an extension of time was necessary "because expert
discovery has not started yet and plaintiffs will oppose
defendants' claim that the existing statements identifying Abu
Halawa as the murderer are inadmissible, with expert
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foundational testimony showing that they are admissible." Id.
at 2, 10-11. On September 19, 2012, the Court granted
Plaintiffs' Motion for Relief Pursuant to Rule 56(d) and
extended their time to oppose Defendants' Motion for Summary
Judgment until after the completion of expert discovery and
Issacharoff's deposition [Dkt. No. 297].
Six months later, on March 19, 2013, Defendants moved to
resume briefing on their Motion for Summary Judgment, noting
that Plaintiffs had withdrawn their motion in the Israeli court
to compel Issacharoff to reveal his sources and that expert
discovery was at a standstill because Plaintiffs had not
provided any expert disclosures [Dkt. No. 298].
While that motion was pending, on April 19' 2013,
Plaintiffs filed a Motion to Compel Production of Late-Disclosed
Documents [Dkt. No. 303]. On June 6, 2013, after reviewing in
camera the documents Plaintiffs sought to compel, the Court
denied the Motion to Compel and set dates for the completion of
summary judgment briefing [Dkt. No. 314] . 6 Thereafter, on
6
Plaintiffs also filed a "Renewed Motion to Compel" GIS
documents on December 23, 2013 [Dkt. No. 352], which the Court
treated as a motion for reconsideration and denied [Dkt. No.
365]. See Gilmore v. Palestinian Interim Self-Government Auth.,
No. 01-853, 2014 WL 1193728 (D.D.C. Mar. 24, 2014) ("Gilmore
.D_").
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October 1, 2013, Plaintiffs filed their Opposition to
Defendants' Motion for Summary Judgment [ Dkt. No. 32 9] . On
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 terrorism," or that individual's "estate,
survivors, or heirs," may sue in any "district court 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 or acts dangerous to human
life that are a violation of the criminal laws of the
United States or of any State, or that would be a
criminal violation if committed within the
jurisdiction of the United 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).
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"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." Estate of
Parsons v. Palestinian Auth., 651 F.3d 118, 122 (D.C. Cir. 2011)
("Estate of Parsons II") . In addition, the plaintiff must meet
the territorial requirements set forth in Section 2331 ( ( 1) (C)
and prove that the conduct constituting the predicate criminal
offense satisfies one of three intent requirements in Section
2331 (1) (B). 18 U.S.C. § 2331 (1).
B. Standard on Summary Judgm.en t
Summary judgment should be granted only if the movant
establishes that there is no genuine dispute as to a material
fact and that the case may be resolved as a matter of law. Fed.
R. Ci v. P. 56 (a) . A fact is "material" if a dispute over it
might affect the outcome of the suit under governing law; a
dispute is "genuine" if the evidence is such that "'a reasonable
jury could return a verdict for the nonmoving party.'" Holcomb
v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
A summary judgment movant may carry its initial burden by
"pointing out that there is an absence of evidence to
-13-
support the nonmoving party's case." Celotex Corp. v. Catrett,
477 u.s. 317, 325 (1986). 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 claim." Arrington
v. United States, 473 F.3d 329, 335 (D.C. Cir. 2006) (citing
Celotex Corp., 477 U.S. at 322). "A party asserting that a fact
cannot be or is genuinely disputed must support the assertion
by[] citing to particular parts of materials in the record" or
by "showing that the materials cited do not establish the
absence or presence of a genuine dispute [.]" Fed R. Ci v. P.
56 (c) (1).
The court must view any admissible evidence in the light
most favorable to the nonmoving party, draw all reasonable
inferences in its favor, and abstain from making credibility
determinations or weighing the evidence. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). If the
nonmovant has presented competent evidence on which a reasonable
juror could rule in its favor on each element of its claim,
summary judgment must be denied. On the other hand, "[i]f
evidence is merely colorable, or is not significantly probative,
summary judgment may be granted." Liberty Lobby, 477 U.S. at
249-50 (citations omitted); see also Athridge v. Aetna Cas. &
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Sur. Co., 604 F.3d 625, 631 (D.C. Cir. 2010) (a mere
"possibility that a jury might speculate in the plaintiff's
favor" is not sufficient to defeat summary judgment).
As the Supreme Court stated in Celotex Corp., "the plain
language of Rule 56(c) mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a
party who fails to make 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. Evidentiary Principles
As our Court of Appeals has observed, "[v] erdicts cannot
rest on inadmissible evidence." Gleklen v. Democratic Cong.
Campaign Comm., 199 F.3d 1365, 1369 (D.C. Cir. 2000).
Therefore, while a party opposing summary judgment "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." Id. (emphasis in original) . If it
were otherwise, "the objective of summary judgment - to prevent
unnecessary trials would be undermined." Id. (citations
omitted).
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In ruling on summary judgment motions, the court decides
questions of evidentiary admissibility, and in so deciding, is
not bound by the Rules of Evidence, except those of privilege.
See Fed. R. Evid. 104 (a). Matters pertaining 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 the Federal Rules of Evidence, "hearsay" is not
admissible unless an exception applies. Fed. R. Evid. 802.
Hearsay is an out-of-court statement offered to· prove the truth
of the matter asserted, unless it is a prior inconsistent
statement of a witness, a party admission, or deposition
testimony offered under the circumstances set forth in Fed. R.
Evid. 32. See Fed. R. Evid. 801 (c)- (d); Fed. R .. Civ. P. 32.
Our Court of Appeals has held that, absent an applicable
exception, hearsay is not capable of being converted into
admissible evidence and therefore "'counts for nothing' on
summary judgment." Greer v. Paulson, 505 F.3d 1306, 1315 (D.C.
Cir. 2007) (citation omitted). Consequently, 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
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motion if it finds that Plaintiffs' proffered evidence consists
only of inadmissible hearsay.
As to expert testimony, as the Supreme Court held in
Daubert v. Merrell Dow Pharmaceuticals, the trial judge also
performs a "gatekeeping" function to ensure that such testimony
"both rests on a reliable foundation and is relevant to the task
at hand." 509 u.s. 579, 597 (1993). Thus, it is also proper
for the trial judge "to screen out inadmissible expert testimony
on summary judgment." Strauss v. Credit Lyonnais, S.A., 925 F.
Supp. 2d 414, 437 (E.D.N.Y. 2013) (citing Raskin v. Wyatt Co.,
125 F.3d 55, 66 (2d Cir. 1997)). "This is true even if the
exclusion of expert testimony would be outcome determinative."
Id. (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142-43
(1997)).
III. DISCUSSION
Defendants advance two sets of arguments in support of
summary judgment: first, that Plaintiffs lack any admissible,
nonhearsay evidence to support their lynchpin theory that Abu
Halawa killed Gilmore; and second, 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. Because, as discussed
-17-
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. See Pls.' Opp' n at 2. They claim to
possess four types of such evidence: (1) Israeli government
reports; ( 2) a passage in the book The Seventh War; ( 3)
testimony given by Al Khatib at the military trial of Damara in
2009; and (4) Maslamani's 2001 custodial statement. Plaintiffs
also rely on the opinion of their expert, former IDF department
head and Lieutenant Colonel, Alon 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, and, in many
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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., 734 F.3d 1161, 1166-67 (D.C. Cir. 2013) (internal
quotation marks omitted) . Plaintiffs' failure to properly cite
or even to quote the documentary sources on which they rely in
their Memorandum of Law is compounded by the fact that they
filed an overwhelming 2500-plus pages of documents annexed as
exhibits to their Opposition brief. See Bombard v. Fort Wayne
Newspapers, 92 F.3d 560, 562 (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.
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With these observations in mind, the Court considers
whether Plaintiffs have identified any admissible 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." Pls.' Opp'n at 2. These "reports" are
actually press releases appearing on the IMFA webpage that
purport to transmit information from an unidentified "IDF
Spokesman." Tolchin Decl. ~ 26.
The first "report" is captioned "Force 17 Background
Material - March 2001." It does not even mention Abu Halawa but
rather accuses Damara of having directed a terrorist cell
responsible for "numerous terrorist attacks," including a
"shooting attack in Jerusalem, in which 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.
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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 Diriya 5 - 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 that a
record or statement of a public office is admissible if: ( 1) it
sets out either "a matter observed while under a legal duty to
report[]" or "factual findings from a legally authorized
investigation," and ( 2) "neither the source of information nor
other circumstances indicate a lack of trustworthiness." Fed.
R. Evid. 803 (8) (A) (ii)- (iii), (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)!
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sources it is derived. As discussed, 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, without knowing anything about the source of the
information, the Court cannot conclude that it sets out matters
personally observed by any Israeli official, no less one with a
"legal duty to report," or factual findings from a legally
authorized investigation. 10 See, e.g., United States v. El-
Mezain, 664 F.3d 4 67, 4 97-507 (5th Cir. 2011) (holding reports
inadmissible under Rule 803 ( 8) absent information as to "where
or how [the declarant] obtained the information," the
"circumstances under which the documents were created, the duty
of the authors to prepare such documents, [or] the procedures
and methods used to reach the stated conclusions"); Gill v. Arab
Bank, PLC, 893 F. Supp. 2d 542, 571 (E.D.N.Y. 2012) (finding
official reports of the Israeli Security Agency inadmissible
10
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].
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under Rule 803(8) because, inter alia, they relayed "information
of uncertain provenance"); cf. Estate of Parsons II, 651 F.3d at
134 (Tatel, J., concurring) (accepting assertions in public
record authored by unknown source as true "would require piling
inference (about the reliability and knowledgeability of the
statement's author) upon inference (about when the statement was
written) upon inference (about the statement's evidentiary
basis) akin more to speculation than to reasonable fact-
finding").
Further, Rule 8 03 ( 8) "is based on the notion that public
records are reliable because there is a lack of . motivation
on the part of the recording official to do other than
mechanically register an unambiguous factual matter." El-
Mezain, 664 F.3d at 498-99 (5th ·cir. 1985) (quoting United
States v. Quezada, 754 F.2d 1190, 1194 (5th Cir. 1985)). Thus,
as previously stated, the Rule requires that "neither the source
of information nor other circumstances indicate a lack of
trustworthiness." Fed. R. E~id. 803(8) (B). The Court obviously
cannot draw any conclusions about the "motivation [ s]" of the
recording officials when it lacks any information about whD
those officials are, where they got their information, and under
what circumstances. The complete absence of such information
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"indicate[s] a lack of trustworthiness." Fed. R. Evict.
803(8)(B).
In sum, the Court concludes that the IMFA webpages are not
admissible under Rule 803 (8) and, therefore, do not create a
genuine factual dispute that Abu Halawa killed Gilmore. 11
2. Passage from The Seventh War
Next, Plaintiffs rely on a passage in Issacharoff' s book
The Seventh War. The passage states that, 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." Tolchin Decl. Ex. 54
[Dkt. No. 333-12]. The passage further reports that Abu Halawa
and Awe is conferred on a name in which to announce
responsibility for the attack and eventually settled on the name
"Al Aqsa Martyrs Brigades," which Aweis allegedly preferred
"since it did not contain the name Fatah," whose "leadership
11
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." Id. 12 At his deposition,
Issacharoff testified that this 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 (3) Abu Halawa's
statement to Aweis after the NII attack. Pls.' Opp' n at 3-4;
see Fed. R. Evid. 805 (excluding "hearsay within hearsay" unless
"each part of the combined statements conforms with an exception
to the rule") . The Court shall not reach whether Issacharoff's
written account 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 that he assumed
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) provides that an out-of-court statement is
admissible if: (1) the declarant is unavailable to provide
testimony; and (2) the declarant's statement is "so contrary to
the declarant's proprietary or pecuniary interest or had so
great a tendency to expose the declarant to civil or
criminal liability" that "a reasonable person in the declarant's
position would have made [it] only if the person believed it to
be true [.]" Fed. R. Evid. 804 (b) (3).
Because Abu Halawa is deceased, he is "unavailable" within
the meaning of Rule 804 (b) (3). See Rule 804 (a) ( 4) . However,
his very desire to "assume responsibility" for the NII attack
suggests that he perceived public attribution for the attack to
be in his interest, not contrary to it. As other courts have
observed, "[u] nder the perverse assumptions of terrorists, an
-26-
armed attack on civilians reflects glory. Taking 'credit' for
such an attack is deemed a benefit, not a detriment[.]" Gill,
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 to a declarant's interests, the interests and
motives of terrorists are far from typical.") . Applying this
same reasoning; the Court concludes that Abu Halawa's
announcement to Aweis that he would assume responsibility for
the NII attack was a publicity-seeking effort that was not
contrary to his perceived interests. Therefore, his statement
is not admissible under Rule 804 (b) (3).
ii. Aweis's Statements
Plaintiffs make two arguments for admitting Aweis's out-of-
court statements to Issacharoff, both of which are similarly
unavailing.
Vicarious Party Admission
Plaintiffs first argue that Aweis's statements are
admissible as a vicarious party admission under Rule
80l(d) (2) (D). That rule provides that a statement 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 [. ] " Fed. R. Evid.
-27-
801 (d) (2) (D). Thus, to establish admissibility under this
exception, Plaintiffs must demonstrate both that 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. It
is further undisputed that, at the time of his interview with
Issacharbff, he was serving "multiple life sentences" in an
Israeli prison for his involvement in a number of terrorist
attacks. See Eviatar Decl. ~ 61 [Dkt. No. 345]; Defs.' Reply at
10. Plaintiffs argue, however, that he was still an employee
of the PA at the time because the PA has a policy of promoting
and paying its officers while they are imprisbned in Israeli
custody. Pls.' Opp'n at 3-4.
The Supreme Court has held that where, as here, a rule or
statute uses "the term 'employee' without defining it," it
should be construed to describe "the conventional master-servant
relationship as understood by common-law agency doctrine."
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-24 (1992)
( citations omitted) . For purposes here, it is sufficient to
-28-
apply the simplest formulation of that doctrine: an employee is
"[a] person who works in the service of another person (the
employer) under an express or implied contract of hire, 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., Ex. G (deposition tr. of Abdel Karim
Aweis, dated Dec. 7, 2011) ("Aweis Tr.") 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 such promotions occur automatically with the
passage of time. See Tolchin Decl.; Ex. F (deposition tr. of
Mahmoud Damara, dated Dec. 6, 2011) at 8:20-9:17 [Dkt. No. 330-
6] ( "Q. So you were promoted while you were in jail, correct?
A. Yes. And the reason is that our military ranks are
subject to automatic promotion when the time factor matures.
It's all computerized lists. As long as you meet the
-29-
standards, you get promoted."). There is no evidence that Aweis
was required to do anything, or refrain from doing anything, in
order to receive the promotions. 14 Consequently, the record does
not establish that he continued to be employed by the PA for
~urposes of Rule 80l(d) (2) (D) at the time of his interview with
Issacharoff. 15
Even assuming Aweis was still employed by GIS while he
served out multiple life sentences in an Israeli prison,
Plaintiffs have not shown that his statements to Issacharoff
fall within the scope of that employment. There is no evidence
that Aweis's job functions included gathering intelligence
related to terrorist attacks generally, 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, 7 62 ( 7th Ci r . 2003 ) ( " [ T ] he sub j e c t rna t t e r of the
admission [must] match the subject matter of the employee's job
description."); Wilkinson v. Carnival Cruise Line_s, Inc., 920
F.2d 1560, 1566-67 & n.12 (11th Cir. 1991) (holding that scope
of cabin steward's employment did not 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, Head of
Intelligence for GIS, to argue that "as a PA intelligence
officer it was Aweis' job, by definition, to learn and obtain
information about terrorist activity, such as the murder of Mr.
Gilmore." Pls.' Opp' n at 4 (emphasis in original) . However,
Faraj' s Declaration merely describes the general functions of
GIS as an agency; it does not mention Aweis or anything about
his specific position as an employee of GIS. See Pls.' Opp' n,
Ex. 1 (Decl. of Majed Faraj) ! ! 4-6 [Dkt. No. 336-2]).
Further, even if Aweis' s job included learning and
obtaining information about the NII attack, his statements to
Issacharoff pertained to selecting a name in which Abu Halawa
would assume responsibility for the 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 announcements assigning responsibility for
terrorist attacks. To the contrary, Abu Halawa purportedly
wanted to take credit for the attack, not as an officer of the
PA, but on behalf of a "new military wing of Fatahi" suggesting
that both men viewed their conversation as relating to
activities independent of their responsibilities as PA
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' second argument for the admission of Aweis' s
statements is that they were contrary to his penal interests
under Rule 804(b) (3). As discussed, to satisfy this exception,
Plaintiffs must show both that Aweis is "unavailable" and that
his statements had "so great a tendency" to expose him to
criminal liability that a reasonable person in his 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 could not recall his
-32-
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. Evid. 804 (a) (3). Plaintiffs do not, however, specify
which conversation they contend Aweis could not recall - the
conversation with Issacharoff or the one with Abu Halawa. As
Defendants point out, Aweis testified that he did remember his
conversation with Issacharoff but could not recall specifically
what he had told Issacharoff. See Aweis Tr. at 40:20-24.
In any event, this definition of unavailability "applies
only if the declarant is unable to remember the 'subject
matter'" of the statement, "i.e., if '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." Lamonica v. Safe Hurricane Shutters, Inc., 711
F.3d 1299, 1317 (11th Cir. 2013) (citations 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. Id. at 1317.
Aweis did not testify to a lack of memory regarding the
subject matter of his interview with Issacharoff, which was his
-33-
purported telephone conversation with Abu Halawa immediately
after the NII attack. To the contrary, when asked whether he
had ever discussed the NII shooting attack with Abu Halawa, he
answered definitively "No, no." Aweis Tr. at 41:21. He also
testified that he had no knowledge 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, but
rather that it never happened, he is not "unavailable."
~' United States v. Uribe, 88 F. App'x 963, 964-65 (8th Cir.
2004) (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 interests. First, nothing about the
statement implicates Aweis in actually perpetrating the attack;
it merely gives him credit for helping to select the name in
which Abu Halawa took responsibility for th€ attack. Second, at
the time Aweis made the statements, he was already s€rving
multiple life sentences, substantially diminishing the prospect
that he would be deterred from making statements that could
expose him to further criminal liability. Third, as the Court
-34-
has already observed, efforts by known terrorists to associate
themselves with 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 of both Aweis and Abu Halawa embedded in
Issacharoff's account are inadmissible. Consequently, the
passage in The Seventh War cannot be used to prove that Abu
Halawa killed Gilmore.
3. Statements of Bashar ~ Khatib
Next, Plaintiffs contend that Al Khatib testified under
penalty of perjury at Damar a's military trial on January 12,
2009, that "his statements and handwritten accounts to the
Israeli police implicating Abu Halawa in the murder were true."
Pls.' Opp'n at 4. They argue that this testimony is "admissible
under Rule 801(d) (1) (A) because Khatib repudiated that sworn
trial testimony in his deposition in this case." Id. 16
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) applies to prior inconsistent statements
of a witness. Its "essential requirements" are that " ( 1) the
declarant testifies at the trial [or deposition]; (2) the
declarant is subject to cross-examination concerning the [prior]
statement; (3) the statement is inconsistent with his [or her]
present testimony; and (4) the prior statement was given under
oath." United States v. Emor, No. 10-298 (PLF), 2012 WL 458610,
at *1 (D.D.C. Feb. 13, 2012) (internal citations omitted).
As Defendants point out, Plaintiffs "seek to rely on a
supposedly prior inconsistent statement without identifying the
statement." Defs.' Reply at 14. Plaintiffs have not cited to
any portion of the Damara trial transcript in which Al Khatib
admitted, as they contend, "that his statements and handwritten
accounts to the Isra~li police implicating Abu Halawa in the
murder were true [ . ] " Pls.' Opp'n at 4. The Court's own review
of that transcript reveals none. Instead, Plaintiffs appear to
hang their hat on a brief portion of the transcript in which,
the prosecutor asked, "[a] ccording to what I understand from
you, everything that you have said about Muhannad Abu 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 correct but
whatever is related to [Damara] is incorrect. Correct?" and Al
Khatib answered "Yes." See Tolchin Decl., Ex. 18 (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, Plaintiffs' counsel
did not confront Al Khatib with this testimony or ask him to
explain it. 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 in his prior statements about Bashir Nafa, Omar
Ka'adan, and Abu Halawa was correct. Because Rule 801(d) (1) (A)
requires that a declarant be cross-examined about the specific
statement sought to be introduced as inconsistent, this failure
alone is grounds to exclude the 2009 testimony on which
Plaintiffs rely. See Fed. R. Evict. 613(b), 801(d) (1).
Moreover, it is not at all clear that, in his response to
the prosecutor's question at Damara's trial, Al Khatib
understood himself to be affirming the truth of his prior
statements implicating Abu Halawa in the NII attack (which is,
-37-
of course, the only way in which that statement would be
inconsistent with his testimony in this case). The prosecutor's
question as to whether everything he had previously said "about
Muhannad Abu Halawa, about Bashir Nafa, Omar Ka'adan, [was]
correct" directly followed questioning related to an incident
other than the NII attack. 17 Earlier in the same examination, Al
Khatib testified specifically about the NII attack, and that
testimony was consistent with his testimony in this case. In
particular, when asked what he knew "about the attack at the
National Insurance Institute in 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) at ECF p. 16 [Dkt. No. 331-18]
(emphasis added) . When asked again about the "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." Id. at 17 (emphasis added). In sum, Al Khatib's
testimony at Damara's trial was generally consistent, not
inconsistent, with his testimony in this case. His one word
response to a vague question by the prosecutor does not change
that equation.
Because Plaintiffs have not shown that Al Khatib gave
inconsistent testimony at Damara's trial, or that they ever
cross examined him regarding such testimony, the testimony is
not admissible under Rule 801 (d) (1) (A) and cannot be used at
trial to support their theory that Abu Halawa killed Gilmore. 18
4. Statements of Mas1amani
Fourth, 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 attack at the National Insurance Institute. See Tolchin
Decl., Ex. 8 (custodial statement of Maslamani, dated January
18, 2001) at 1. Plaintiffs contend that this statement is
admissible as a statement against penal interest under Rule
804(b) (3). The Court disagrees.
First, as previously discussed, a statement against
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 was deposed in this case, gave testimony
concerning the NII attack, and neither refused to answer
questions on that topic nor testified as to a lack of memory.
See Fed. R. Evid. 804 (a) (2)- (5) . 19 Consequently, he is not
"unavailable." See Grace United Methodist Church v. City Of
Cheyenne, 451 F.3d 643, 665 n.ll (10th Cir. 2006) (a "deposed
declarant can never be 'unavailable' for purposes of an
exception under Rule 804 (b) (3) "); see also Campbell ex rel.
Campbell v. Coleman Co., 786 F.2d 892, 896 (8th Cir. 1986)
19
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 was not "unavailable" under Rule 8 04 (a) ( 5)
because that "subsection is concerned with the absence of
testimony, rather than the physical absence of the declarant")
(citations omitted).
Plaintiffs contend that Maslamani nevertheless is
"unavailable" because they did not have the opportunity 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. Pls.' Opp' n at 5. Even if
this was relevant, Plaintiffs do not cite any evidence
indicating that Maslamani agreed to the admission of his
statement as it related to the NII attack, for which Maslamani
was never charged. As Defendants point out, the "Israeli
military tribunal quoted in its entirety the portion 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, for which Misalmani
was convicted." Defs.' Reply at 17 (citing Tolchin Decl., Ex. 7
(verdict) ) at 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, even if Maslamani was unavailable, as Defendants
point out, 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 a broader narrative that is generally self-
inculpatory." Williamson v. United States, 512 U.S. 594, 600-01
(1994); see also Fed. R. Evid. 804, Advisory Committee Notes to
exception 3 ("[A] statement 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 attack was not contrary to his penal interests, his
20
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) and
cannot be used at trial to prove that Abu Halawa killed
Gilmore. 21
5. The Expert Opinion of Alon Eviatar
Fifth and finally, Plaintiffs have retained, as an expert
witness, former IDF intelligence officer and Department Head of
Palestinian Affairs, Alon Eviatar, who opines, among other
things, that it is "more likely than not, that Muhanad Abu
Halawa carried out the October 30, 2000 murder of Mr. Gilmore."
See Corrected Decl. of Alon Eviatar ("Eviatar Decl.) ~ 33 [Dkt.
No. 345]. Plaintiffs argue that even if none of the foregoing
evidentiary items are admissible, Eviatar's opinion is
sufficient to take their case to a jury.
Rule 702 of the Federal Rules of Evidence governs the
admissibility of expert testimony. It provides that a witness
who is qualified as an expert may "testify in the form of an
opinion or otherwise if: (a) the expert's specialized
knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue; (b) the testimony is based on
sufficient facts or data; (c) the testimony is the product of
21
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 applying any particular methodology or specialized
expertise to his review of the Plaintiffs' inadmissible
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 The Court agrees.
First, Eviatar has not identified any particular
methodology he used to form his opinion. To the 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 is a function of three main
variables: ( i) the nature and/or quality of available
information and data; ( ii) the variety and diversity of the
sources and/or types of information and data; and (iii)
22
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 professional instincts
and intuition." Eviatar Decl. ! 32.
Eviatar does not, however, even consider these variables in
reaching his conclusion that "it is very likely, and certainly
more likely than not, that Muhanad Abu Halawa carried out the
October 30, 2000 murder of Mr. Gilmore." Id. ! 33. Instead, his
analysis is devoted entirely to explaining why he believes
Plaintiffs' hearsay. evidence is reliable. See id. !! 34-64.
His Declaration contains no discussion of "the variety and
diversity of the sources and/or types of information and
data[.]" 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) of an assessment or conclusion," he has not "reliably
applied" his own methodology to the facts of this case and,
therefore, his opinion does not satisfy Rule 702(d). See, e.g.,
Strauss, 925 F. Supp. 2d at 441 (" [I] t is well settled that
'[u]nder Daubert and Rule 702, expert testimony should be
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excluded if the witness is not actually applying [the] expert
methodology."') (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. Eviatar Decl.
c:n:c:n: 34-64. 23 Although an expert is entitled to rely on
inadmissible evidence in forming his or her opinion, the expert
"must form his [or her] own opinions by applying his [or her]
extensive experience and a reliable methodology to the
inadmissible materials." United States v. Mejia, 545 F.3d 179,
197 (2d Cir. 2008) (quotation marks and internal citations
omitted); see also
Estate of Parsons I, 715 F. Supp. 2d at 33 ("Expert opinions may
be based on hearsay, but they may not be a conduit for the
introduction of factual assertions that are not based on
personal knowledge.") (citing Fed. R. Civ. P. 56(e) (1));
Strauss, 925 F. Supp. 2d at 445 (expert "testimony cannot be
used as an excuse to introduce and summarize straightforward
23
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.
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factual evidence that has not been admitted, such as a webpage
that says 'Hamas carried out a suicide bombing'").
Eviatar has not applied any specialized knowledge to the
hearsay materials on which he relies. Instead, his analysis
consists entirely of deductions and observations that flow
directly from the content of the hearsay statements and would be
self-evident to a layperson. For example, he suggests that Al
Khatib's four custodial statements should be believed rather
than his deposition testimony in this case because at his
deposition, he did "not seem to have been a neutral or
spontaneous witness, and his testimony was not continuous or
complete, as it was in his statements to Israeli police."
Eviatar Decl. ~ 51. Likewise, he opines that Maslamani's
custodial statement is reliable because it is "fairly detailed
in respect to both the circumstances in which Abu Halawa
conveyed the information to Maslamani, and the particulars of
the attacks." Id. ~ 56. These are precisely the type of
generalized inferences that a lay person, and the jury itself,
could draw without any expert assistance. 24
24
The Court also notes that accepting some of Eviatar's
assertions would require the suspension of common sense. For
example, he opines, without any explanation whatsoever, that Al
Khatib's custodial statements are more reliable than his
deposition testimony because Israeli police interrogations are
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Eviatar' s discussion of the other evidentiary sources he
relies on is similarly generalized. He states that 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. <:II 44. He does
not, however, provide any facts regarding the basis of this
opinion much less relate it to his specific experience and
expertise.
The closest Eviatar comes to drawing on his extensive
experience as an intelligence officer is his 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 [] Israel's
credibility on the line in the eyes of the international
community" and carry the risk of "an unnecessary escalation of
tensions with the Palestinians." Id. Eviatar fails, however, to discuss the specific protections
that constrain 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.
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intelligence information; the quantum of evidence necessary to
satisfy the IMFA' s concerns regarding maintaining its
credibility in the international community and avoiding
unnecessary conflict with the Palestinians; from whom in the IDF
the IMFA would have obtained its information; the types of
sources on which the IDF would have relied; and/or what
protocols or processes the IMFA and IDF would have 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 concludes that he "is simply repeating
hearsay evidence without applying any expertise whatsoever, a
practice that allows [Plaintiffs] to circumvent the rules
prohibiting hearsay." Mejia, 54 5 F.3d at 197 (quotation marks
and internal citations omitted) .
In sum, Eviatar' s opinion is not based on any reliable
"principles [or] methodology" reliably applied to the facts of
the case, Daubert, 509 U.S. at 595, and does not draw on any
specialized knowledge that would be helpful to the jury, as is
required by Rule 702. Williams v. Illinois, 132 S. Ct. 2221,
-2-2-4-1----(-2-G-1-2--)-. - -1-R-s-~eaEi-,- l"le-merel-y---we±674 F. Supp. 2d 175, 179-80 (D.D.C. 2009) (quoting Henkel
v. Varner, 138 F.2d 934, 935 (D.C. Cir. 1943)); see also United
States v. Boney, 977 F.2d 624, 628 (D.C. Cir. 1992) ("[Expert]
testimony should ordinarily not extend to matters within the
knowledge of laymen.") ; United States v. Farrell, 563 F.3d 364,
377 (8th Cir. 2009) (expert usurped jury function when she
"opined on the strength of the Government's case and the
credibility of its witnesses").
Consequently, Eviatar' s opinion is not admissible to prove
that Abu Halawa killed Gilmore.
6. Plaintiffs Have Not Presented Any Admissible
Evidence that Abu Halawa Killed Gi1more
As discussed above, Eviatar's expert opinion is
inadmissible and Plaintiffs' only other evidence that Abu Halawa
killed Gilmore is "sheer hearsay," which "'counts for nothing'
on summary judgment." Greer, 505 F.3d at 1315. Nor have
Plaintiffs demonstrated that any of the evidence on which they
rely is capable of being converted into admissible evidence.
-50-
Therefore, Plaintiffs have not identified any admissible
evidence to bring their case to a jury on their foundational
allegation that Abu Halawa killed Gilmore and summary judgment
must be granted for Defendants. 25
B. Plaintiffs' Supplemental Cla~s
Plaintiffs do not directly address whether their
supplemental claims also require proof that Abu Halawa killed
Gilmore. They argue solely that "the federal ATA claim requires
plaintiffs to prove more elements than the garden-variety
supplemental claims." Pls.' Opp' n at 8. However, Plaintiffs do
not explain how their quantum of proof differs on their
supplemental claims, nor do they suggest that such claims can
prevail without proof that Abu Halawa killed Gilmore.
Because the Court has concluded that Plaintiffs have not
presented any admissible evidence that Abu 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, Defendants' Motion for Summary
Judgment shall be granted, and the case shall be dismissed in
its entirety. An Order shall accompany this Memorandum Opinion.
July 28, 2014
Copies to: attorneys on record via ECF
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