gilmore v. palestinian authority district court opinion

8/10/2019 Gilmore v. Palestinian Authority District Court Opinion

http://slidepdf.com/reader/full/gilmore-v-palestinian-authority-district-court-opinion 1/52



I

BACKGROUND

A Factual Background

Pla in t i f f s ' family member Esh

Kodesh

Gilmore ( Gilmore )

was

a

United Sta tes na t ional

who made

his

home in Mevo Modi'im,

an I s rae l i neighborhood near the West

Bank.

See

SOMF

a t 1 1-

2.

He was ki l l ed on October 30, 2000, in a shooting a t tack a t a

branch of f ice of the

National Insurance

In s t i tu te ( NII )

in

East

Jerusalem,

where he worked as a secur i ty guard. Id. a t 2

3

The

a t tack

occurred

a t the beginning of the

Second

In t i fada , a period of sustained violence and unres t

in I s rae l

and

Pales t ine .

2

According

to an informational re lease issued by

1

The

fac ts

are drawn from the Pla in t i f f s '

Counter-Statement of

Material Facts

to

Which There Are Genuine

Issues

( SOMF ) [Dkt.

No. 335-4] and accompanying exhibi ts .

Resolut ion

of

t h i s

Motion

tu rns ent i re ly on whether

cer ta in

i tems of

evidence

are

admissible

under the

Federal Rules

of

Evidence, which i s a

matter to

be

determined

so le ly by

the Court

and

does not present

any quest ions

that

would

otherwise be

submit ted

to a

jury. See

Fed. R.

Evid.

104. Consequently, the Court includes fac ts

that

provide

the basis for i t s evident iary rul ings , even i f disputed.

Other

than

the date,

loca t ion,

and

fac t of Gilmore 's death, the

fac ts

are disputed unless

otherwise sta ted.

2

According to

a

Report issued

by

the

United

Sta tes S ta te

Department,

the

susta ined

violence

between I s rae l i s and

Pales t inians . . broke out on September

28,

2000, and by the

end of

July,

2001, more than 6,000 ser ious inc idents

of

violence

in

the

West. Bank, Gaza, and I s rae l had

been repor ted . See

Second

Corrected

Declarat ion

of

Robert J . Tolchin ( Tolchin

Decl.

) ,

Ex.

6

(United Sta tes S ta te

Department

Report on the

. - 2 -



t h e I s r a e l Minis t ry o f Fore ign

Affa i r s

( IMFA

11

, the

shoot ing

was

pe rpe t ra t ed by

a

so le

gunman who

en te red the

NII

shor t ly

a f t e r noon,

f i r ed a number

o f

sho ts a t

c lose

range a t

the two

s ecu r i t y guards

in

the w ai t in g room, and f l ed on foo t . See

Second Correc ted Decl .

o f Rober t J . Tolchin

( Tolch in Decl .

11

) ,

Ex.

62

(IMFA

webpage

d a ted Sept .

23,

2013) [Dkt.

No. 333-21] .

Gilmore

died upon

a r r i v a l

a t

the

hosp i ta l . Id .

Although

t i s

undispu ted t h a t the Sta t e o f I s r a e l neve.r

p ro secu ted

o r

convic ted

anyone

in

connect ion wi th

the

a t t ack ,

SOMF

4,

P l a i n t i f f s

be l i eve the

a t t a ck was planned and ca r r i ed

out

by

a t e r r o r i s t

c e l l

c o n s i s t i n g o f o f f i c e r s

in

a

PA

s ecu r i t y

u n i t

known

as the P r es id en t i a l

Secu r i ty Serv ices , o r

Force 17,

11

and members

o f

an armed

PLO fac t ion

ca l l ed Tanzim.

See

Complaint ( Compl.

11

) 17-30 [Dkt. No.

1] .

S p ec i f i c a l l y ,

t hey

a l l eg e

t h a t the

gunman who sho t Gilmore was a

Force

17 o f f i c e r

named

Muhanad

Abu

Halawa. Id . 26, 27, 28.

3

Abu Halawa

was

k i l l e d by I s r a e l i Defense Forces (

IDF) on

o r about March 5,

2002. SOMF 6.

Sta tus of the PLO

Commitments Compliance

Act

( PLOCCA

11

, dated

Dec.

15,

2000

- June 15,

2001)

a t

2

[Dkt.

No.

334-1

a t

3] .

3

Due to the t r a n s l i t e r a t i o n o f hi s name from

Arabic

to English ,

t he

name Abu Halawa i s somet imes w r i t t e n

as

Muhannad Abu

Halaweh

and Muhand

Abu Haliwa.

He

was a l so known

as

Muhannad Sa 'eed Munib D ei re i a .

11

-3 -



Pla in t i f f s

claim tha t [b) etween September

2000 and

his

death in March 2002,

a

t ime per iod dur ing which

he was

employed

ful l - t ime

i n P res iden t i a l Secur i ty /Force 17,

Abu

Halawa spent

much i

not most

of his

t ime

executing t e r r o r i s t at tacks

toge ther with

a

mix

of

other P

and

Fatah

off i cers ,

leaders and

operat ives

a l l

of

whom

were convicted of car ry ing out

numerous vio lent t e r r o r i s t a t t acks [ . ]

SOMF a t

8

JI

16

They

fur the r al lege tha t ,

in car ry ing

out the

a t t ack

a t

the

NII, Abu

Halawa

ac ted

under

a

di rec t

order

of

Force

17

regional

commander

Mahmoud

Damara and pursuant to

a

broad di rec t ive i s sued by

former Pales t in ian

leader Yasser

Arafat to organize , plan

and

execute widespread ac t s of t e rror i sm agains t

c i v i l i ans

in

I s rae l , Gaza

and

the West Bank. Compl. JI JI 23, 25, 28,

29.

Pla in t i f f s ' theory t ha t Abu

Halawa

perpet ra ted

the a t t ack

i s

based in

large

par t on two se t s of custodia l

sta tements

al legedly given to I s rae l i pol ice by h i s a ssoc ia t es .

4

The f i r s t

i s a

January

18,

2001,

wri t ten

s tatement of Tanzim

member

Mustafa Maslamani ( Maslamani )

5

descr ib ing

a

conversa t ion he had

4

Pla in t i f f s

also

re ly on

a

passage

from

the book The Seventh

War, How

We

Won and Why We

Lost the War

with the Pales t in ians

(2004) ( The Seventh War ) by Avi Issacharoff and

Amos

Harel and

reports i ssued

by

the I s r a e l i

government, which

are discussed in

more

de ta i l

in f ra .

5

Maslamani

i s sometimes re fe r red to

as

Misalmani.

-4 -



The second

se t

of custodia l s tatements on which

Pla in t i f f s

re ly consis t s

of

four separa te wri t t en s tatements made by

Force

17 off icer Bashar Al Khatib ( Al Khatib ) to

I s r ae l i

pol ice in

Apri l 2002.

Each

of

these

s tatements i s di f fe ren t . In the

f i r s t s tatement , given

Apri l

11, 2002,

Al

Khatib

confessed

involvement in

the previously

mentioned

French

Hil l shoot ing

and

th ree

other

shoot ing inc idents but did not menti6n any

par t i c ipa t ion

in

the NII a t tack.

See Tolchin Decl . ,

Ex. 9

(cus todia l

s tatement

of

Al

Khatib,

dated

April

11,

2002) [Dkt

No 331-9] .

In the second

s tatement , given

a day

l a t e r on

Apri l 12,

2002, Al Khatib s ta ted

t ha t

he was

prepared

to t e l l you what I

did not say

yes terday ,

and went on

to

say that , on a di rec t

order

from

Damara, he

had accompanied

Abu Halawa and another

ind iv idual named Omar Karan to

East

Jerusalem where the

NII was

loca ted and served as a lookout

while

Abu Halawa ca r r ied out the

a t tack

on

the

NII.

Tolchin

Decl . ,

Ex. 10

(cus todia l

s tatement

of Al

Khatib,

dated Apri l 12, 2002) a t 1-3 [Dkt. No 331-10].

In

his

t h i rd statement , given April

23, 2002,

Al Khatib

recanted the Apri l

12

s tatement

in

i t s

en t i r e t y

as

t

re l a t ed

to

the

NII

shoot ing and denied any connect ion to t ha t a t tack .

See

Tolchin Decl . , Ex. 11

(cus todia l

s tatement of Al Khatib, dated

-6 -



April 23, 2002)

[Dkt. No.

331-11] a t

4

( In my previous

statement to

the pol ice

I

sa id tha t

I

par t ic ipa ted

in

the

shooting a t tack

a t

the

nat ional

insurance off ice

in East

Jerusalem, but t h i s i s not cor rec t , I did not par t i c ipa te in

t h i s

a t tack and

I

jus t

s ta ted

th i s and

I have

no

connect ion

to

th i s a t tack . ) .

Final ly , in h is four th statement , on

April

24, 2002, Al

Khatib

again disclaimed a l l pr i o r s tatements regarding the NII

a t tack

and gave

yet

another

vers ion

of

his

connect ion

to

the

a t tack.

In t h i s

version,

he wrote

tha t

Abu Halawa phoned him on

October 30, 2000,

to ask

for ass is tance t ransport ing

a

vehicle

through

an

I s rae l i

checkpoint .

e

s ta ted fur ther

tha t

when

he

met

with Abu Halawa l a t e r tha t day, Abu Halawa to ld

him

tha t he

Abu Halawa),

had carr ied out an a t tack a t the NII

with

two

other ind iv iduals a t

the

di rec t ion

of

regional Force 17

commander Mahmoud Damara

( Damara ).

See Tolchin

Decl. ,

Ex. 12

(cus todia l

s tatement of

Al

Khatib, dated April

24,

2002)

a t

1-2

[Dkt. No. 331-12].

Like Maslamani, Al Khatib subsequent ly denied the t r u th of

his custodia l

s tatements

as

they

re la ted

to

the

NII

a t tack .

e

t e s t i f i ed

a t his deposi t ion in t h i s case

tha t

he provided

the

statements

to I s rae l i pol ice because

I was

under to r ture , and I

-7 -



was threatened

regarding my

wife and

kids.

So

tha t was

the only way out for

me

i s to wri te t h i s [ . ] Tolchin Decl . , Ex.

E

(deposi t ion t r . of Al

Khatib,

dated Dec. 5, 2011) ( Al

Khatib

Tr. ) a t

25:21-25 [Dkt. No.

330-5].

When asked

whether he had

had any communication with

Abu

Halawa

about

[the

NII]

opera t ion , he responded, No. Not

not

once, and fur ther

s ta ted t ha t

the

ent i re National Insurance case, we have nothing

to

do

with

it. Id.

a t

24:4-6, 28:11-13.

Like

Maslamani,

Al

Khatib

was

prosecuted

and

convicted

for

his

involvement in

another a t tack involving I s r ae l i s but was

never

prosecuted for

or convicted

of

any involvement in

the NII

at tack . SOMF 13.

B

Procedural Background

On Apri l

18,

2001, Pla in t i f f s f i l ed th i s act ion agains t

Defendants P and

PLO, as

well as eleven of t he i r current and

former

employees

( the Indiv idual Defendants ) ,

seeking

compensation for Gilmore ' s death under

the

T

and var ious

common

law theor ies . See

genera l ly

Compl.

Defendants

P

and

PLO

and

the

Indiv idual Defendants

i n i t i a l l y

f a i l ed

to

answer

the

Complaint, prompting

the

Court

to

en te r

a

defaul t .

On January 29,

2002,

however, they appeared

through

counsel and

moved to

vacate

t he i r

defaul t and

to

dismiss

-8 -



the

Complaint

pursuan t to Fed. R. Civ.

P. 12(b) .

After gran t ing

the Motion

to

Vacate , the Cour t

denied Defendants P

and PLO s

Motion to Dismiss but g ran ted the Ind iv idua l Defendants '

Motion

to

Dismiss fo r

l ack

of personal

j u r i s d i c t i on . See

Gilmore v.

Pales t in ian Auth . , 422 F.

Supp. 2d

96 (D.D.C. 2006).

Defendants

P

and

PLO

then f i r e d

t h e i r

a t to rneys and f a i l e d

to

f i l e an

Answer to the Complaint , prompting the Court to

en t e r

a

second

d e f au l t

aga ins t them

on January 29, 2007 [Dkt. No. 92] .

They

subsequen t ly

re t a ined new

counsel

and,

on

November

15,

2007, f i l e d a Motion to Vacate · t h e second

en t ry

o f

d e f au l t ,

which

the Cour t

gran ted on

December

28, 2009.

See

Gilmore v .

Pales t in ian

Auth. ,

675

F. Supp. 2d

104, 111-13 (D.D.C. 2009)

( Gilmore

I ) .

The

pa r t i e s then en te red

a

two and-a -ha l f

year p e r i o d

o f

discovery , dur ing which P l a i n t i f f s t ook nine depos i t ions , e ig h t

o f

which were

non-par ty wi tness depos i t i ons conducted

p u rsu an t

to the Hague

Convention

on

the

Taking

o f

Evidence Abroad in

C i v i l o r Commercial Matters ( Hague Convention ) . These

inc luded

t h e December 2001

depos i t ions

o f

Maslamani, Mahmoud

Mater ,

and

Ziad

Wahadan;

the

December 2011

depos i t ions o f

Al

Khat ib ,

Damara, Abdel Karim

Aweis

( Awe i s ) , and Nat ional

Insurance I n s t i t u t e designee Ya'

akov

Aravot ;

and

the

June

2012

-9 -



deposi t ion

of

I s r ae l i

j ou rna l i s t A

v i I s sacharo f f

( I ssacharoff ) , co-author

of the

book The

Seventh War,

ow We

Won and Why We

Lost

the

War

with the Pales t in ians ( The Seventh

War ), which, as discussed in f ra , conta ins

a

passage impl ica t ing

Abu Halawa

as

the gunman in

the

NII

a t t ack .

On August 9, 2012, Defendants f i l ed the ins tan t Motion for

Summary Judgment,

arguing,

i n t e r a l i a , tha t

a f t e r

more than two

years of

fac t

discovery,

Pla in t i f f s '

only

evidence

to support

t he i r

core

theory

tha t

Abu

Halawa k i l l ed

Gilmore

i s

inadmiss ib le

hearsay. See

genera l ly

Defs. ' Mot. [Dkt.

No

285].

Pla in t i f f s

did

not immediately oppose Defendants ' Motion

but ins tead , on September 6, 2012,

moved

under Fed.

R

Civ.

P.

56(d) for add i t iona l t ime to complete discovery.

See

genera l ly

Pls . '

Mot.

for Rel ief Pursuant

to Rule 56

(d)

[

Dkt.

No 2 90]

They explained

t ha t

they were in the process

of

moving, in

I s rae l i

cour t ,

to

compel Issacharoff

to

d isc lose

the i den t i t y of

sources

who

a l l eged ly

to ld him t ha t Abu

Halawa was

the gunman in

the

NII a t tack .

Id .

a t

1-2, 4,

6,

7-8, 10-11. They

a l so argued

tha t an extens ion of t ime

was necessary

because exper t

discovery

has

not

s t a r t ed

yet

and

p la in t i f f s

wil l

oppose

defendants '

c la im

tha t

the ex i s t ing

sta tements

i den t i fy ing

Abu

Halawa

as the murderer are

inadmiss ib le ,

with

exper t

-10-



foundational

test imony showing

tha t they

are adm issible. Id.

a t

2,

10-11.

n September 19,

2012,

the Court

granted

Pla in t i f f s Motion

for Rel ief

Pursuant to

Rule 56(d)

and

extended the i r t ime to

oppose

Defendants ' Motion for Summary

Judgment

un t i l a f t e r

the

completion

of

expert

discovery

and

I s sacha rof f s depos i t ion [Dkt.

No

297].

Six months l a t e r , on March

19,

2013, Defendants

moved to

resume

br ie f ing

on

t he i r

Motion

for

Summary Judgment, not ing

tha t Pla in t i f f s

had withdrawn

the i r

motion

in

the

I s rae l i

cour t

to compel Issacharoff to

reveal

his

sources and

that

expert

discovery was

a t

a s tands t i l l

because Pla in t i f f s

had not

provided

any exper t disc losures [Dkt.

No

298].

While

tha t motion was pending,

on April

19'

2013,

Pla in t i f f s f i l ed

a Motion to Compel Production of Late-Disclosed

Documents [Dkt. No 303].

n June

6, 2013,

a f te r

reviewing

in

camera

the

documents

Pla in t i f f s sought

to compel,

the Court

denied

the

Motion to Compel

and

se t

dates for the completion of

summary judgment

br ie f ing [Dkt. No 314]

6

Thereaf ter , on

6

Pla in t i f f s also f i l ed a Renewed

Motion to

Compel GIS

documents

on December

23,

2013

[Dkt. No 352], which

the

Court

t rea ted as a

motion for

reconsiderat ion and denied [Dkt. No

365]. See Gilmore v. Pales t inian

In ter im Self-Government

Auth.,

No 01-853,

2014 W

1193728

(D.D.C. Mar.

24,

2014)

( Gilmore

.D_ ).

-11-



October 1,

2013,

Pl a i n t i f f s f i l ed t he i r

Opposit ion

to

Defendants ' Motion for

Summary

Judgment

[

Dkt.

No. 32 9] .

On

October 25, 2013, Defendants

f i l ed

t he i r Reply [Dkt. No. 341].

I I . LEG L ST ND RDS

A

The

ATA

The

c i v i l

l i a b i l i t y

provis ion

of the ATA s t a t e s t ha t any

United Sta tes na t iona l

who

i s in ju red

by

reason

of an

ac t

of

i n t e rna t iona l t e r ro r i sm,

or t ha t

indiv idua l ' s

e s ta te ,

survivors ,

or

h e i r s ,

may

sue

in

any d i s t r i c t

cour t

of

the

United States

and s ha l l

recover

t h ree fo ld the damages

he

or she

sus ta ins .

18

U.S.C. §

2333(a).

An

ac t

of

i n t e rna t iona l

te r ror ism i s

def ined

to include a c t i v i t i e s tha t :

A)

involve

v io len t

ac t s

l i f e tha t are a

v io la t ion

United Sta tes

or

of any

cr imina l

v io la t ion

i

j u r i s d i c t i on of the United

or ac t s dangerous to human

of the c r imina l laws of the

Sta te , o r t ha t would be a

committed

within the

Sta tes

o r

of

any Sta te j

B) appear to be

in tended ( i )

to

in t imidate

or

coerce

a

c iv i l i an populat ion;

i i ) to inf luence the

pol icy

of a

government by in t imida t ion

or

coercion; or

( i i i ) to

a f fec t the

conduct of a government by mass

des t ruc t ion ,

assass ina t ion , or

kidnapping;

and

C) occur

pr imar i ly

outs ide the

t e r r i t o r i a l

j u r i s d i c t i on

of the

United Sta tes

or

t ranscend

na t iona l

boundaries

in

terms

of the

means

by which

they are accomplished, the

persons

they appear

in tended to

in t imida te

or coerce[ . ]

18 u.s.c. §

2331(1) .

-12-



In

o t h e r words,

to

p r ev a i l [on a c i v i l T c la im] , a

p l a i n t i f f must

prove

t h a t the defendant would

have

v i o l a t e d

any

one o f a se r i e s o f pred ica t e cr imina l laws

had

the defendant

ac ted

with in the j u r i s d i c t i o n

of the United

S t a t e s .

Esta te o f

Parsons v. Pales t in ian Auth. , 651 F.3d

118,

122 (D.C. Cir . 2011)

( Es ta te

o f Parsons I I ) .

In add i t ion , the

p l a i n t i f f must meet

the

t e r r i t o r i a l

requirements

se t fo r th in Sect ion

2331

1) C)

and prove t h a t t h e conduct co n s t i t u t i n g the pred ica t e cr imina l

offense

s a t i s f i e s one

o f

t h ree

i n t e n t

requ i rement s

in

Sect ion

2331

(1)

(B).

18 U.S.C.

§ 2331 (1) .

B

Standard

on Summary Judgm en t

Summary judgment should be gran ted only i t h e movant

es t ab l i s h e s

t ha t

the re i s

no

genuine

di spu te as to

a

mate r i a l

f ac t and t h a t the case may be reso lved as a mat te r o f law. Fed.

R. Ci

v P.

56

a)

A f ac t

i s

mate r i a l i a d i s p u t e over it

might a f f e c t

t h e outcome

of the

s u i t under

governing

law; a

dispu te

i s

genuine i the evidence i s such t h a t ' a reasonab le

j u ry could r e tu rn a v e r d i c t fo r the nonmoving p a r t y . ' Holcomb

v . Powell ,

433 F.3d

889, 895 (D.C.

Cir .

2006)

(quot ing

Anderson

v .

Liber ty

Lobby,

Inc . ,

477

U.S. 242,

248

(1986)) .

A summary judgment movant may ca r ry its i n i t i a l burden by

poin t ing out

t h a t

t he re

i s an

absence o f

evidence to

-13-



Sur. Co.,

604

F. 3d

625, 631 (D.C.

Cir . 2010)

(a

mere

pos s ib i l i t y t ha t

a

ju ry

might specula te

in

the p l a i n t i f f ' s

favor i s not s u f f i c i en t to defea t summary

judgment) .

As the Supreme Court

s t a t e d

in

Celotex Corp . ,

the pla in

language of Rule 56(c) mandates the

en t ry

o f

summary judgment,

a f t e r

adequate t ime

fo r

discovery

and upon

motion,

aga ins t

a

par ty

who f a i l s to

make

a showing s u f f i c i en t t o e s t ab l i sh

the

ex i s t ence of an element es s en t i a l

to

t ha t p a r t y ' s case ,

and

on

which

t ha t

par ty

wi l l

bear

the

burden

of

proof

a t

t r i a l .

477

U.S.

a t

322.

C

videntiary rinciples

As our

Court

of

Appeals

has

observed,

[v] erd ic t s cannot

r e s t

on

inadmiss ib le

evidence .

Gleklen v. Democratic Cong.

Campaign Comm. 199

F.

3d

1365,

1369 (D.C. Cir .

2000) .

Therefore , while

a

pa r t y

opposing summary

judgment i s not

r equ i red to produce

evidence

in a form

t ha t

would be

admiss ib le

a t t r i a l , the

evidence

st ll

must

be capable

o f being

conver ted

i n t o

admiss ib le evidence .

Id. (emphasis in

or ig ina l ) .

I f t

were otherwise , the ob jec t ive o f summary judgment - to prevent

unnecessary t r i a l s

omi t ted) .

would

be

undermined.

-15-

Id.

(c i t a t i ons



In

ru l ing

on summary judgment motions, the

court decides

questions

of

evident iary admiss ibi l i ty , and in

so

deciding, i s

not bound by the Rules of Evidence, except

those

of pr iv i lege .

See Fed. R.

Evid.

104

(a) . Matters

perta in ing to

the

admiss ib i l i ty of evidence must

be

establ i shed by

a

preponderance

of evidence.

Daubert v. Merrel l ow Pharmas., Inc . , 509 U.S.

579, 592 n.10 (1993).

Under the Federal Rules of Evidence,

hearsay

i s not

admissible unless

an

except ion

appl ies .

Fed.

R

Evid.

802.

Hearsay

i s an out -of-court sta tement offered to· prove

the

t ru th

of

the matter asser ted , unless

t

i s

a pr ior inconsis tent

sta tement of a witness,

a par ty admission,

or

depos i t ion

test imony offered

under the

circumstances set for th in Fed. R

Evid.

32.

See

Fed.

R Evid.

801

(c)- (d);

Fed.

R. . Civ. P. 32.

Our

Court of Appeals

has

held tha t ,

absent

an appl icable

exception, hearsay i s not capable

of

being conver ted in to

admissible

evidence

and

therefore ' counts for nothing '

on

summary judgment.

Greer v. Paulson , 505

F.3d

1306, 1315 (D.C.

Cir .

2007) (c i ta t ion

omit ted) .

Consequently, t i s proper

for

the

Court

to

rule

on

the

admiss ib i l i ty

of

hearsay evidence

in

the

context of a motion

for

summary

judgment

and to grant the

-16-



motion i f t f inds

tha t

Pla in t i f f s ' proffered evidence consis ts

only of inadmissible hearsay.

As to expert test imony, as

the Supreme

Court held in

Daubert v.

Merrel l Dow

Pharmaceut icals , the t r i a l judge also

performs a gatekeeping funct ion

to

ensure

that

such test imony

both res t s on a re l i ab le foundation and i s relevant to

the t ask

a t hand.

509

u.s. 579,

597 (1993).

Thus,

t i s also

proper

for the

t r i a l

judge

to screen

out inadmissible exper t tes t imony

on

summary

judgment.

Strauss

v.

Credi t

Lyonnais,

S.A.,

925 F.

Supp.

2d 414,

125

F.3d

55,

437 (E.D.N.Y. 2013)

66 (2d Cir. 1997)).

(c i t ing Raskin

v.

Wyatt Co.,

This i s

t rue

even i f the

exclusion of expert test imony would be outcome determinat ive.

Id. (c i t ing

Gen.

Elec. Co.

v.

Jo iner ,

522 U.S.

136,

142-43

(1997)).

I I I

DIS USSION

Defendants

advance

two

se t s of

arguments

in support

of

summary judgment: f i r s t ,

that

Pla in t i f f s lack any admissible ,

nonhearsay evidence to support

t h e i r

lynchpin theory tha t Abu

Halawa ki l led Gilmore; and second, tha t even i f Pla in t i f f s

possessed admissible proof

tha t

Abu

Halawa

ki l l ed

Gilmore,

there

i s

no basis

under

the

T on

which to

hold

Defendants

l i ab le

for

his

conduct

vicar ious ly or

otherwise. Because,

as

discussed

-17-



below,

Pla in t i f f s f a i l

to i den t i f y any

admissible evidence

suppor t ing t h e i r core

theory

t ha t bu

Halawa ki l l ed

Gilmore,

and

the re fo re cannot prevai l on t he i r claim, the

Court

need not and

sha l l

not reach

Defendants

second

se t of arguments.

A

P l a i n t i f f s

ail

to Ident i fy Admissible Evidence

to

Support

the ir Theory

that bu

Halawa

Kil led

GiLmore

Pla in t i f f s

do

not disagree t ha t , in

order

to

survive

summary

judgment, they must produce admissible

evidence

t ha t bu

Halawa k i l l ed

Gilmore. See

P l s .

Opp n

a t

2.

They

cla im to

possess four types of such

evidence:

(1)

I s r ae l i government

reports ;

2

a

passage in

the book The Seventh War;

3

test imony

given by

Al Khatib

a t

the mil i ta ry

t r i a l of Damara in

2009;

and (4) Maslamani s 2001

cus tod ia l

s tatement .

P l a i n t i f f s

also r e ly

on

the opinion of

t he i r

exper t , former

IDF

depar tment

head

and

Lieutenant

Colonel,

Alon

Eviatar ,

which

Defendants

argue

i s

inadmiss ib le under Federal Rule of Evidence

702.

At the ou t se t ,

the

Court

notes tha t , al though P l a i n t i f f s

sought

and

rece ived

more· than a

year- long

extens ion of t ime to

f i l e

t h e i r Opposi t ion

to the i n s t an t

Motion,

t he i r

Memorandum

of

Law conta ins

only

nine

pages, i s almost

en t i r e l y

devoid of any

c i t a t i ons to t h e i r Statement

of

Undisputed

Mater ia l

Facts or

the

record,

cons i s t s l a rge ly of conclusory asse r t ions , and,

in

many

-18-



places , lacks any explanat ion whatsoever. As our

Court

of

Appeals recent ly observed:

In

t h i s

c i rcu i t , t

i s

not enough merely to mention a

possible

argument

in

the

most

ske le ta l way,

leaving

the

court

to

do counsel s

work,

crea te

the

ossature

for the argument, and put

f lesh

on

i t s

bones.

Two

sentences

of argument, a threadbare

conclusion,

and a

handful of marginal ly re levant c i t a t ions do not

provide us

with

enough to adequately

assess the

s t rength

of

the i r lega l conclusions.

Alla i th i v. Rumsfeld, No. 13-5096, 2014

W

2575417, a t *6

(D.C.

Cir.

June

10,

2014)

(c i t ing

Davis

v. Pension

Benef i t

Guar.

Corp. ,

734 F.3d 1161,

1166-67

(D.C. Cir.

2013)

( interna l

quotat ion marks omitted) . Pla in t i f f s '

fa i lu re

to proper ly

c i t e

or even

to

quote the documentary sources

on

which

they re ly

in

the i r Memorandum

of

aw i s

compounded

by

the

fac t tha t they

f i l ed an

overwhelming

2500-plus pages of documents

annexed as

exhibi ts to

the i r

Opposit ion

br ie f .

See

Bombard

v.

Fort

Wayne

Newspapers,

92 F.3d 560, 562 (7th Cir .

1996) ( I t i s not our

funct ion

to scour

the

record in

search of evidence to defeat a

motion for

summary judgment;

we

re ly

on the

nonmoving par ty to

iden t i fy with reasonable

pa r t i cu l a r i t y the evidence

upon

which

he r e l i e s . ) .

7

7

Defendants argue

tha t approximately nineteen of Pla in t i f f s '

nine ty-s ix exhib i t s

are

inadmissible under Fed. R.

Civ.

P.

37(c) 1) because

they were

produced

to

Defendants for the

f i r s t

time in oppos i t ion to th i s

Motion. See

Defs .

Reply

a t 3 3.

-19-



With

these

observat ions in mind,

the

Court

considers

whether

Pla in t i f f s

have iden t i f i ed

any

admissible evidence to

support the i r theory tha t Abu Halawa ki l led Gilmore.

1 srae l i Government Reports

Pla in t i f f s f i r s t re ly on two I s rae l i

government repor t s ,

which

they claim

iden t i fy

[]

Force 17 and

Abu Halawa as having

executed the murder.

Pls . '

Opp'n

a t

2. These

reports are

ac tua l ly

press

re leases appearing

on the

IMF

webpage

tha t

purport

to

t ransmit

informat ion

from an

unident i f ied

IDF

Spokesman. Tolchin Decl. 26.

The

f i r s t

repor t

i s

captioned

Force

17

Background

Mater ial March 2001. I t

does not

even mention Abu Halawa

but

ra the r

accuses

Damara of

having

di rec ted a t e r r o r i s t ce l l

responsible

for

numerous t e r ro r i s t

a t t acks ,

including a

shooting

a t tack in Jerusalem, in which a secur i ty guard was

Defendants did not, however, support th i s asse r t ion with

an

at torney a f f idav i t , and

Pla in t i f f s

have not had an opportunity

to

respond

to t due to the fac t tha t

Defendants

made t

for the

f i r s t t ime on reply. For these

reasons, and because

Defendants

do

not

res t on the i r

Rule 37

(c) argument,

but

ra the r

chal lenge

a l l of

Pla in t i f f s '

evidence on

i t s

meri t s , the Court sha l l

assume, for purposes of

t h i s

Motion only, tha t the exhib i t s

Defendants iden t i f ied

as

la te-produced

are

admissible .

-20-



ki l l ed

and

another wounded

( 30

October)

.

See Tolchin

Decl . ,

Ex. 60 [Dkt. No.

333-19]

.

8

The second report

i s

capt ioned

"Force

17

Ter ror i s t

Mohand

Said Muniyer Diriya

5 -

Mar

2002."

I t announces IDF'

s

assass ina t ion

of

Abu Halawa

and

claims

tha t

he was a "member o f

a

Ramallah-based t e r ro r i s t ce l l

who

personal ly took par t in

a

l st

o f

twelve

a t t acks , inc luding the NII a t t ack .

See Tolchin

Decl . ,

Ex.

61

[Dkt.

No. 333-20].

Pla in t i f f s

argue

tha t

these

IMFA

repor t s

are

admiss ible

under

Federa l

Rule of Evidence 803

(

8),

9

which

s t a t e s

tha t

a

record

or

s tatement

of

a

publ ic of f ice

i s

admiss ible i f :

(

1)

t

se t s out e i t he r "a mat te r

observed

while under

a

l ega l duty to

repor t [ ] or

fac tua l

f indings

from a

l ega l ly author ized

inves t iga t ion ,

and (2) ne i the r

the

source

of

informat ion nor

other

circumstances

ind ica te

a

l ack of t rus twor th iness .

Fed.

R.

Evid. 803

(8)

A) ( i i) - ( i i i) , (B).

Pla in t i f f s

have

not provided one

i o t a

o f informat ion as to

how

the mater ia l in the IMFA webpages

was

compiled or from what

8

Although

Pla in t i f f s

al lege

tha t

Damara ordered or d i rec ted the

NII at tack , they have

not

at tempted to

prove

the PA's

re spons ib i l i ty for

the

a t t ack through him alone.

9

Pla in t i f f s

c i t e

"Rule

803

( 8) (C)," which, as Defendants

r igh t ly

observe, does not ex i s t . Defs . ' Reply a t

5. The

Court assumes

Pla in t i f f s meant to c i t e Rule 803(8) A) and (B)

-21-



sources

t i s der ived.

As discussed,

the

webpages purpor t

to

re l ay informat ion from

an

IDF Spokesman but no informat ion has

been

provided as to who t ha t Spokesman

i s ,

where t ha t person got

his

or

her

informat ion,

or

for

what

purpose .

Plain ly ,

without

knowing

anything

about

the source of the

informat ion, the Court

cannot conclude

tha t

t se t s out mat te rs

personal ly

observed by any

I s r ae l i

of f ic ia l , no less

one

with a

l egal duty

to

repor t , or fac tua l f indings from a l ega l ly

author ized

inves t iga t ion .

10

See,

e .g . ,

United

Sta tes

v.

E l-

Mezain, 664 F. 3d 467, 497-507

(5th

Cir . 2011) (holding reports

inadmissible

under Rule

803 8)

absent informat ion as to where

or how [the declarant] obtained the

informat ion, 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 s ta ted conclus ions ) ; Gi l l

v. Arab

Bank,

PLC,

893

F.

Supp.

2d

542,

571

(E.D.N.Y. 2012)

( f inding

of f ic ia l reports

of

the

I s r ae l i Secur i ty Agency

inadmissible

10

This i s

espec ia l ly

t rue given tha t

the

Sta te of I s rae l never

prosecuted

anyone

for

the NII a t tack and a pol ice report

de ta i l ing the I s r a e l i Police depar tment 's

i nves t iga t ion

of

the

NII a t t ack

ne i the r

mentions

Abu

Halawa nor ind ica tes

tha t

I s rae l i

po l ice

made

any fac tua l f indings

re la ted to

the

i den t i t y

of the gunman. See Tolchin Decl . , Ex. 59 ( I s r ae l i pol ice report

t i t l e d Murder of Esh Kodesh Gilmore National Insurance

Ins t i t u t e Off ices -Eas t

Jerusalem, dated Nov. 22, 2000) [Dkt.

No.

333-18].

-22-



under Rule

803(8)

because, i n t e r a l i a , they

re layed

informat ion

of uncer ta in provenance ) ; cf . Esta te of

Parsons

I I ,

651

F.3d a t

134

(Tatel , J . , concurring)

(accept ing asse r t ions in publ ic

record authored by unknown source as t rue

would

require

pi l ing

inference (about the r e l i a b i l i t y and

knowledgeabil i ty

of the

s ta tement ' s author) upon

infe rence (about when the s tatement was

wri t ten)

basis)

f inding ) .

upon inference

(about the s ta tement ' s

evident iary

akin

more

to specula t ion than to reasonable fac t -

Further , Rule 8 03 8) i s based on the not ion

tha t publ ic

records are r e l i ab l e because there i s a lack of

. motivat ion

on

the par t of the recording o f f i c i a l to do other than

mechanical ly r e g i s t e r

an

unambiguous fac tua l ma t t e r . E l-

Mezain, 664 F.3d a t 498-99

(5th

·c i r .

1985)

(quoting United

Sta tes

v.

Quezada, 754 F.2d

1190,

1194 (5th Cir .

1985)) .

Thus,

as

previous ly

s ta ted ,

the Rule

requires

t ha t

ne i the r

the

source

of informat ion nor other circumstances i nd ica te a lack of

t rus twor th iness . Fed. R. E ~ i d

803(8) (B).

The Court

obviously

cannot draw any

conclusions

about

the

mot iva t ion [s ]

of

the

recording

o f f i c i a l s

when

t

lacks

any

informat ion

about

wh

those of f i c i a l s

are , where they

got t he i r informat ion,

and under

what circumstances .

The

complete

absence of

such informat ion

-23-



indica te[s]

a l ack

of t rus tworth iness .

Fed. R

Evict.

803(8)(B).

In sum, the Court

concludes

t ha t the IMFA webpages are not

admiss ible under Rule 803 (8) and,

the re fo re ,

do not

crea te a

genuine

f ac tua l

dispute t ha t

Abu

Halawa k i l l e d Gilmore.

2 Passage

from

The Seventh

ar

Next, P l a i n t i f f s re ly on

a passage

in

I s sacharo f f ' s book

The Seventh War.

The passage

s t a t e s

t ha t , a f t e r the

a t t ack a t

the

National Insurance

Ins t i t u t e ,

Abu

Halawa

phoned

Abdel

Karim

Aweis,

a member

of the General

In te l l igence appara tus from

Jenin

and

t o ld

Aweis t ha t he

wanted to announce

to

the

media

tha t he

assumed

r e s pons ib i l i t y

for the

East Jerusalem a t t ack on

behalf of

a new

m i l i t a ry

wing

of Fa tah . Tolchin Decl. Ex.

54

[Dkt. No. 333-12]. The passage

fu r the r repor t s t ha t

Abu

Halawa

and

Awe i s

conferred

on

a

name

in which

to

announce

re spons ib i l i ty for the

a t t ack

and eventual ly se t t l ed on the name

Al Aqsa Martyrs

Brigades ,

which

Aweis

a l leged ly p re fe r red

s ince t did not conta in

the

name Fatah , whose leadership

Indeed,

Pla in t i f f s had previous ly acknowledged tha t they were

not

aware

of

any ru le

of

evidence

t ha t

would permit the

admission a t t r i a l

of the

[

IMFA]

s tatement [s] . See Pls . '

Appl ica t ion for Issuance

of

a

Let t e r

of

Request fo r Jud ic ia l

Ass is tance

Pursuant

to the Hague Convention

a t

3

n.

4 [

Dkt.

No.

213].

-24-



feared

being

iden t i f i ed

with

a t tacks . Id .

12

At his deposi t ion ,

Issacharoff

t e s t i f i ed tha t

t h i s

account

was based on

an

interview he

conducted

with Aweis in an I s rae l i pr ison in

2004.

Pla in t i f f s

concede, as

they must, tha t

to

admit the passage

as evidence tha t Abu Halawa k i l l e d

Gilmore,

they must es tab l i sh

a basis to admit

each

out -of-court s tatement embedded within it

namely: 1)

I s sacharo f f '

s wri t ten account, 2) we

i s '

s tatements

to

Issacharoff

a t

the

interview

in 2004,

13

and

3) Abu

Halawa's

s tatement

to

Aweis

a f t e r

the

NII

at tack .

Pls . '

Opp'

n

a t

3-4;

see

Fed.

R. Evid. 805 (excluding hearsay within hearsay unless

each

par t

of

the combined

s tatements

conforms

with

an

except ion

to the rule ) .

The

Court sha l l not reach whether I s sacha rof f ' s

wri t t en

account

i s

admiss ible

because, as discussed below,

12

Ear l i e r

in the passage,

the

book i den t i f i e s Abu Halawa as the

gunman in the NII a t tack , but Pla in t i f f s do not seek to admit

tha t port ion . See Pls . ' Opp'n a t 3.

13

Defendants argue t ha t

there

i s no

s ta tement

of Aweis because

the book paraphrases ra the r than

d i rec t l y quotes

the

content

o f

his

conversat ion

with Issacharoff . Defs . ' Mot. a t 21.

Assuming,

however, t ha t I s sacha rof f ' s wr i t t en account was

admissible , the

absence

of a

di rec t

quote

does not i t s e l f change

the analys is

under

the

hearsay rules . See

Harr is v.

Wainwright,

760

F.2d 1148, 1152 (11th

Cir .

1985) ( tes t imony implying t ha t

declarant

had furnished the

pol ice with

evidence

was

hearsay

al though not re to ld

verbat im);

Keith v.

Kurus,

No. 3:08 CV 1501,

2009 W 2948522, a t *17 (N.D. Ohio Sept . .

11,

2009)

( Paraphrasing or not repeat ing the witness ' s sta tement verbatim

does

not exclude

it from

being

hearsay. ) (c i t a t ions omit ted) .

-25-



Pl a i n t i f f s

have not es tab l i shed a bas i s

to admit the s ta tements

of e i the r Abu Halawa or

Aweis.

i

bu Halawa s

Statement

Pl a i n t i f f s

argue t ha t Abu Halawa's s ta tement

to

Aweis t ha t

he wanted to

announce

to

the

media

t ha t

he

assumed

re spons ib i l i t y

for the

East Jerusa lem a t t a ck

on

beha l f

o f

a new

mi l i t a ry wing

of

Fatah i s a

s ta tement

aga ins t

penal

i n t e r e s t

admiss ib le under

Rule

804 (b) (3).

Rule

804 (b) (3)

provides

t ha t

an

ou t -o f -cour t

sta tement

i s

admiss ib le

i f :

(1)

the

dec la ran t i s

unava i lable

to

provide

tes t imony; and (2)

the

d e c l a ra n t ' s s ta tement

i s

so

cont ra ry to

the

d e c l a ra n t ' s p r o p r i e t a r y

or

pecuniary

i n t e r e s t or had

so

grea t a tendency

to expose

the

dec la ran t to c i v i l or

cr imina l

l i a b i l i t y t ha t

a reasonab le

person

in

the dec la ran t ' s

p o s i t i o n

would have

made

[ i t ]

only

if the

person

be l ieved

it to

be t rue [ . ] Fed. R. Evid.

804

(b)

(3) .

Because Abu Halawa

i s

deceased, he

i s

unava i lable within

the

meaning

of

Rule 804 (b) (3) . See Rule 804 (a)

4)

.

However,

h is

very des i re

to

assume re spons ib i l i t y for the NII

a t t a ck

sugges ts

t ha t

he

pe rce ived

publ ic

a t t r i bu t ion

fo r t he

a t t ack

to

be in his i n t e re s t ,

not

cont ra ry

to

it As

o ther

cour t s

have

observed, [u] nder the pe rve r se

assumptions of

t e r ro r i s t s ,

an

-26-



armed

a t t ack on c iv i l i a ns r e f l ec t s glory . Taking ' c r ed i t ' for

such

an

a t t ack

i s

deemed

a

benef i t ,

not a

de t r imen t [ . ]

Gi l l ,

893 F. Supp. 2d a t 569; see also

Strauss ,

925 F. Supp. 2d

a t

449

( While

admit t ing to a

v io len t a t t ack on innocents t yp ica l ly i s

de t r imenta l

to a

dec la rant ' s

i n t e r e s t s ,

the

i n t e r e s t s and

motives

of

t e r r o r i s t s

are fa r

from t yp ica l . ) . Applying

t h i s

same reasoning;

the Court concludes t h a t

Abu

Halawa's

announcement to Aweis t ha t he

would assume r e sp o n s i b i l i t y

for

the

NII

a t t ack

was

a

pub l ic i ty - seek ing

e f f o r t

t ha t

was

not

con t ra ry to h i s perce ived

i n t e re s t s .

i s

not admiss ib le

under

Rule

804 (b)

(3).

Therefore , h is sta tement

ii Aweis s

Statements

Pl a i n t i f f s make two arguments for admi t t ing Aweis 's ou t -o f

cour t s ta tements to

I s sacharo f f , both

of which are s imi la r ly

unava i l ing .

Vicar ious Party Admission

Pl a i n t i f f s f i r s t

argue

t ha t

Aweis 's

s ta tements

are

admiss ible as

a

v ica r ious

par ty admiss ion

under

Rule

80l(d) (2)

D).

That ru le provides t ha t

a

s ta tement

of fe red

agains t

an

opposing

par ty

i s

not hearsay

i

it

was

made

by

the

p a r t y ' s

agent

or

employee on a mat te r

within

the

scope of tha t

re l a t ionsh ip and while

it ex is ted [ .

]

Fed. R

Evid.

-27-



801

(d) (2) (D).

Thus, to es tab l i sh admiss ibi l i ty

under t h i s

except ion,

Pla in t i f f s

must

demonstrate

both tha t

Aweis

was

employed by the

P a t

the t ime of the interview with Issacharoff

and

tha t

the s ta tements concerned a matter within the scope of

his

employment.

I t i s undisputed tha t Aweis served as

an

in te l l igence

off icer in the PA's General Inte l l igence

Service

( GIS ) between

1998

and 2002, when he was a r res ted by I s rae l i author i t i es . I t

i s

fur ther

undisputed

tha t , a t

the

t ime

of

his

interview

with

Issacharbff , he

was

serving mult iple l i f e sentences

in

an

I s rae l i

prison for

his

involvement

in a number

of

t e r ro r i s t

a t tacks . See Eviatar Decl.

61

[Dkt.

No.

345] ; Defs. '

Reply a t

10. Pla in t i f f s argue,

however, tha t

he

was

st ll an employee

of

the

P a t the time

because the

P

has

a pol icy

of promoting

and paying i t s

of f i ce r s while they

are imprisbned in I s rae l i

custody. Pls . ' Opp'n

a t

3-4 .

The

Supreme Court

has held tha t where, as

here,

a rule

or

s ta tu te uses the term 'employee' without defining i t ,

t

should

be

construed to

descr ibe the

conventional master -servant

re la t ionship

as understood

by

common-law

agency

doc t r ine .

Nationwide Mut.

Ins .

Co. v. Darden, 503 U.S.

318,

322-24

(1992)

c i ta t ions omitted) . For purposes here , t i s suf f ic ien t to

-2 8 -



apply

the simplest formulat ion of

tha t doctr ine:

an employee i s

[a] person who works in

the

serv ice of another person (the

employer) under

an

express or implied

contrac t

of hi re , under

which the employer

has

the r igh t to

contro l the de t a i l s of work

performance. BLACK S L W DICTIONARY 602 (9th ed. 2009).

There i s

no evidence

t ha t Aweis performed any work or serv ices

for

the PA

while in pr ison .

While

he

t e s t i f i ed tha t he received

payments

from

the

PA while in pr ison , he s ta ted

tha t the

payments came

from

the Pr isoners

Club, not

GIS,

and

there

i s

no

ind ica t ion

t ha t he was required to perform any

serv ices in

ord€r

to recBive

them.

See Tolchin Decl . , Ex. G (deposi t ion t r .

of

Abdel Karim

Aweis, dated

Dec.

7, 2011) ( Aweis

Tr. )

a t 21:23-24

[Dkt.

No.

330-7] .

Further ,

al though the

PA

maintains a

po l icy

of

promoting

i t s

off i cers

who

are

imprisoned

in

I s r ae l i

custody, the

evidence

i nd ica tes t ha t

such

promotions occur automat ica l ly

with the

passage

of

t ime. See Tolchin

Decl . ; Ex.

F

(deposi t ion

t r .

of

Mahmoud Damara, dated Dec. 6, 2011) a t 8:20-9:17 [Dkt. No. 330-

6]

Q .

So

you were

promoted while you

were

in j a i l ,

cor rec t?

A Yes

And the

reason

i s

t ha t

our

mil i t a ry

ranks

are

subjec t

to

automatic

promotion

when the

t ime

fac tor

matures.

It s a l l

computerized

l i s t s . As

long

as

you

meet

the

-29-



s tandards , you get promoted. ) . There i s no evidence t ha t Aweis

was

requi red

to do anything, or re f ra in

from doing

anything, in

order to

receive

the promotions.

14

Consequently, the record

does

not es tab l i sh tha t he cont inued to be employed by the PA for

~ u r p o s s of

Rule

80l(d) (2)

D) a t

the

t ime of

his interview

with

Issacharoff .

15

Even assuming Aweis

was

st ll employed by GIS while he

served out mult ip le l i f e sentences in an I s rae l i prison,

Pla in t i f f s

have

not

shown t ha t

his

s tatements

to

Issacharoff

f a l l within

the

scope o f t ha t employment.

There i s

no evidence

t ha t Aweis 's job func t ions included gather ing in te l l igence

re la ted

to t e r ro r i s t a t t acks genera l ly ,

much l ess tha t

the NII

a t tack was the type of a t tack he would have i nves t iga ted or

did

inves t iga te .

See

Alio t ta

v.

Nat' l R. R.

Passenger

Corp. , 315

14

Abu Halawa

was

promoted posthumously a f t e r his

assass ina t ion ,

c lear ly

i nd ica t ing

tha t

the mere

fac t

of a

promotion

does

not

imply the ongoing provis ion of se rv ices . See

Tolchin Decl . , Ex. 67 Abu

Halawa employment

records) a t 1 [Dkt.

No. 334-6].

Indeed,

15

Pla in t i f f s contend

t ha t

the

ra t iona le

underlying F.R.E.

801

D)

2) (d) [s ic]

i s

not the employee 's provis ion

o f

serv ices

to

the

employer

but the employee 's

dependence

on, and re su l t ing

loya l ty to ,

the

employer.

Pls . '

Opp'n

a t

3

(c i t ing

Nekolny

v.

Pain ter , 653

F.2d

1164,

1172

(7th Cir . 1981)). Loyalty may

be

one

of the

ra t iona les

underlying

Rule

801{d)

(2)

(D),

but

loyal ty

alone

does not suf f ice . The

Rule

requires

t ha t

the

employee

have made

the s tatement

while

[ the employment re la t ionship]

ex i s t ed .

Fed. R. Evid. 801

(d)

2) (D).

-30-



F . 3d 7 5 6 , 7 6 2 (7th C r . 2 0 0 3 ) ( [ T ] he

sub

j e c t rna t t e r

of the

admission

[must]

match

the sub jec t

mat te r o f the employee 's job

d e sc r i p t i o n . ) ; Wilkinson

v.

Carn iva l Cruise Line_s, Inc . , 920

F.2d

1560, 1566-67

n.12

(11th

Cir . 1991) (holding t h a t

scope

o f cab in s teward ' s

employment

did not inc lude

knowing

whether

door

outs ide

his

work area

was de fec t ive without a showing t h a t

he [was]

ordered

to the a rea in ques t ion , or t o l d of the

problems

with the

doors

in connect ion wi th his du t i e s ) .

Pl a i n t i f f s

re ly

on

the Dec la ra t ion of

Majed

Fara j ,

Head

of

In t e l l i gence

fo r

GIS, to argue t ha t as

a

P i n t e l l i gence

o f f i c e r it was

Aweis ' job , by def in i t ion ,

to

l ea rn and obta in

informat ion

about t e r r o r i s t a c t i v i t y , such as the murder

o f

Mr.

Gilmore.

Pl s . ' Opp'

n

a t

4

(emphasis

in

o r ig ina l )

.

However,

Fara j ' s

Declara t ion merely descr ibes

the

genera l

func t ions

of

GIS as an

agency;

it does not mention Aweis o r any th ing about

h i s

sp e c i f i c

pos i t ion

as

an employee

o f GIS.

See P l s . ' Opp'

n,

Ex. 1 (Decl . o f

Majed

Faraj) 4-6 [Dkt.

No. 336-2] ) .

Fur ther , even i Aweis '

s

job

inc luded l e a rn ing and

ob ta in ing

in fo rmat ion

about t he

NII

a t t ack ,

h i s

s ta tements to

I s sacharo f f pe r t a ined to

se l ec t ing

a

name in

which

Abu

Halawa

would

assume r e sp o n s i b i l i t y fo r the a t t ack .

There i s no

evidence t ha t

he and

Abu Halawa ever d iscussed

any

i n t e l l i g e n c e

-31-



re la ted t o a t t ack and

no suggest ion tha t his

profess ional

dut ies

included

media

announcements

ass igning

re spons ib i l i ty

for

t e r r o r i s t a t t acks . To

the

contrary , Abu Halawa

purportedly

wanted to take c redi t for the at tack , not

as

an of f i ce r of the

PA,

but on behalf

of a new

m i l i t a ry wing of

Fatahi suggest ing

tha t

both men

viewed

t he i r conversat ion as

re la t ing to

a c t i v i t i e s

independent of

t he i r

respons ib i l i t i es

as P

employees.

For

a l l

of these

reasons,

Pla in t i f f s

have

not

shown t ha t

Aweis ' s s tatements

are

admissible as a vicar ious par ty admission

under

Rule

80l(d) .

Statement

Against Penal In t e re s t

Pla in t i f f s '

second

argument for

the

admission

of

Aweis' s

statements

i s t ha t they were

cont rary to

his

penal i n t e re s t s

under

Rule 804(b)

(3).

As discussed, to

sa t i s fy th i s

except ion,

Pla in t i f f s must

show both tha t Aweis i s unavai lab le

and

tha t

his s ta tements

had

so great

a

tendency to

expose him to

cr iminal

l i a b i l i t y tha t

a reasonable person in

his

posi t ion

would

not

have made

them

unless

bel ieving

them to be t rue . Fed.

R.

Evid.

804

b)

3) .

Pla in t i f f s

argue

tha t

Aweis i s

unavailable

because a t his

depos i t ion

in

t h i s

case

he

could

not r eca l l

his

-32-



conversa t ions[ . ]

Pls . '

Opp'n a t

3. A

declarant i s considered

to

be

unavailable i f ,

among

other th ings , he

or

she t e s t i f i e s

to

not

remembering the subjec t matter

of

the pr ior statement .

Fed.

R. Evid. 804 (a) (3).

Pla in t i f f s

do not , however,

spec i fy

which conversat ion

they

contend

Aweis could not reca l l the

conversat ion

with Issacharoff or the one with Abu Halawa. As

Defendants point

out,

Aweis

t e s t i f i ed tha t he did

remember

his

conversat ion with Issacharoff but

could

not reca l l spec i f i ca l ly

what

he

had

to ld

Issacharoff .

See

Aweis

Tr.

a t

40:20-24.

In any event ,

t h i s

def in i t ion of

unava i lab i l i ty appl ies

only

i the

declarant i s unable to remember the ' subjec t

mat te r ' of the statement ,

i . e . , i f 'he has no

memory

of the

events to which his hearsay statements re la te . ' The fac t tha t

the

witness does not

remember

making

the

statements

themselves

i s i r r e l evan t .

Lamonica v. Safe Hurricane Shut ters , Inc . , 711

F. 3d 1299, 1317

(11th Cir. 2013)

(c i ta t ions

omit ted) .

Consequently,

Aweis's

inab i l i ty to

reca l l

prec i se ly what

he sa id

to I s sacharo f f

does

not render him unavailable under Rule

804(a) (3)

so long as

he remembered the underlying subjec t matter

of

which

they

spoke.

Id.

a t 1317.

Aweis did not t e s t i f y to a lack of memory regarding the

subjec t matter of his interview with Issacharoff , which was his

-33-



purported telephone

conversat ion

with Abu Halawa

immediately

a f t e r

the

NII

at tack .

To the contrary , when asked

whether

he

had

ever

discussed the NII

shoot ing at tack with

Abu

Halawa,

he

answered def in i t ive ly No,

no. Aweis Tr.

a t

41:21.

e also

t e s t i f i e d tha t

he

had no knowledge regarding the NII shoot ing

and

tha t he f i r s t met Abu

Halawa

in December

2001, more

than

one

year a f te r the

NII

a t t ack and

purpor ted

conversat ion took place .

Id. a t 41:4-17. Because

Aweis

did

not

t e s t i f y to a l ack of

memory

regarding the

al leged

conversa t ion

with

Abu

Halawa,

but

ra the r tha t t

never happened, he i s not

unavai lab le .

~ United Sta tes v. Uribe, 88 F. App'x

963,

964-65 (8th Cir .

2004) (holding tha t a

dec la ran t

who remembered what happened

i s not unavai lable under

Fed. R

Evict. 804(a) (3)) .

Pla in t i f f s

also

have not shown tha t Aweis 's s ta tements were

contrary

to

h is

penal

i n t e r e s t s .

Fi rs t , nothing about the

s tatement impl ica tes Aweis in ac tua l ly perpet ra t ing the at tack;

t merely gives

him

c redi t

for

helping

to

se lec t

the name in

which Abu

Halawa took

r e s pons ib i l i t y

for th€ at tack .

Second, a t

the t ime Aweis made

the

s ta tements , he was al ready s€rving

mult ip le

l i f e

sentences,

subs tan t i a l ly

diminishing

the

prospect

tha t he

would be de te r red from making

sta tements t ha t

could

expose him to

fur ther

cr imina l l i ab i l i t y .

Third, as

the

Court

-34-



has already observed, ef for t s by known

t e r ro r i s t s

to associa te

themselves with

t e r r o r i s t ac t iv i t i e s are not perceived to be

against the i r in te res t s

and do

not qual i fy

under

Rule 804(b) (2).

See Gil l ,

893

F.

Supp. 2d a t 569; Strauss , 925 F.

Supp. 2d

a t

44 9.

In sum, even i f the passage in The

Seventh

War qual i f i es as

a recorded

recol lec t ion

of

Issacharoff '

s

interview with Aweis,

t

i s st ll inadmissible

for two

other

reasons,

namely tha t the

hearsay

sta tements of

both

Aweis

and

Abu

Halawa

embedded

in

I ssacharof f ' s

account are inadmissible.

Consequently,

the

passage

in The Seventh War cannot be used

to

prove tha t Abu

Halawa ki l l ed Gilmore.

3 Statements o Bashar Khatib

Next, Pla in t i f f s contend tha t Al

Khatib

t e s t i f i ed

under

penal ty

of perjury a t

Damar

a ' s mil i t a ry

t r i a l

on January 12,

2009,

tha t his sta tements

and handwritten

accounts

to

the

I s rae l i

pol ice

impl ica t ing Abu Halawa

in

the murder were t rue .

Pls . ' Opp'n a t 4.

They argue tha t

th i s

test imony i s admissible

under

Rule

801(d) 1) A) because Khatib repudiated t ha t

sworn

t r i a l

test imony

in

his

depos i t ion

in

t h i s

case .

Id .

16

16

Pla in t i f f s do

not argue

tha t

Al Khatib 's

four

custodia l

sta tements

are independent ly admissible . Our

Court

of Appeals

has

observed tha t

s tatements made

to inves t iga t ing of f ic ia l s

-35-



Rule 8 01 (d) (1) (A)

appl ies

to p r i o r

i ncons i s t en t s ta tements

o f a witness . I t s e s se n t i a l requ i rements a re t h a t (1) the

dec la ran t t e s t i f i e s a t the tri l [or

depos i t ion] ;

(2) the

dec la ran t i s subjec t to

cross -examinat ion

concerning the

[pr ior ]

s ta tement ;

(3) the s ta tement

i s

incons i s ten t

with

h i s [or

her]

present

tes t imony; and (4) the p r i o r s ta tement

was

given under

oa th .

United Sta t e s

v. Emor, No. 10-298

(PLF),

2012 W

458610,

a t *1 (D.D.C. Feb. 13,

2012)

( i n t e r n a l c i t a t i o n s omit ted) .

As

Defendants

poin t

out ,

P l a i n t i f f s

seek

to

r e l y

on

a

supposedly p r i o r i n c o n s i s t e n t s ta tement without

iden t i fy ing

the

s t a t ement .

Defs . '

Reply

a t 14.

P l a i n t i f f s have not

c i t e d

to

any

por t ion of the

Damara

tri l

t r a ns c r ip t in which Al Khat ib

admi t ted , as

they

contend,

t h a t h is s ta tements and handwri t t en

accounts

to

the s r a ~ l i po l i ce

impl i ca t ing Abu

Halawa

in

the

murder were t r u e [ . ]

Pl s . ' Opp'n

a t 4.

The

Court ' s

own review

o f

t h a t

t r a ns c r ip t revea ls

none.

Ins tead ,

P l a i n t i f f s

appear to

hang

t h e i r

ha t on a b r i e f

p o r t i o n

of the t r a n sc r i p t in which,

the p rosecu to r

asked, [ a ]

ccord ing to what I unders tand from

you,

everyth ing

t h a t

you

have

sa id about Muhannad

Abu

Halawa,

are gene ra l ly inadmiss ib le

under Rule 801 (d) (1) (A) unle ss made

in

t he

course o f formal proceedings in which c e r t a i n

guarantees

o f r e l i a b i l i t y are

present .

United Sta t e s v. Livings ton,

661

F.2d

239, 242-43 (D.C.

Cir . 1981)

( c i t ing

case s ) . As noted,

P l a i n t i f f s have

not shown t h a t such guaran tees

o f r e l i a b i l i t y

were

pre sen t

dur ing

Al

Kha t ib ' s i n t e r r o g a t i o n .

-36-



about

Bashir Nafa, Omar Ka'adan, everything i s cor rec t but

whatever

i s

re la ted

to

[Damara] i s i ncor rec t .

Correct? and Al

Khatib

answered Yes. See Tolchin Decl . , Ex.

18 ( t r ansc r ip t of

mil i ta ry t r i a l of Mahmoud Damara, test imony of Bashar Al Khatib)

a t ECF

p.

18

[Dkt.

No 331-18].

During Al Khat ib s depos i t ion in

2011, P l a i n t i f f s counsel

did

not

confront

Al

Khatib

with t h i s

tes t imony

or

ask him to

expla in it

Pla in t i f f s counsel asked

Al Khatib

only

whether he

had

been

ques t ioned

about

his

cus tod ia l

s ta tements

a t

Damar

a s

t r i a l .

Tolchin

Decl . , Ex. E (Al Khatib t r . ) a t 29-31. He did

not fo l low

up by

asking

Al Khatib s pe c i f i c a l l y about his one

word

response

to the prosecu to r s ques t ion of whether every th ing

he had sa id in h i s pr io r

sta tements

about Bashir Nafa, Omar

Ka'adan,

and

Abu Halawa

was

cor rec t .

Because Rule 801(d)

(1) A)

requires

t ha t

a declarant be cross-examined about the

spec i f ic

s tatement sought to be in t roduced

as

inconsis ten t , t h i s f a i l u r e

alone

i s grounds to exclude the 2009 test imony on which

P l a i n t i f f s re ly . See Fed. R

Evict.

613(b), 801(d) (1).

Moreover, it i s

not

a t

a l l c lea r tha t , i n h i s response to

the

prosecu to r s

ques t ion

a t

Damara's

t r i a l ,

Al

Khat ib

unders tood

himself

to

be

af f i rming the

t ru t h of

h i s pr io r

s ta tements impl ica t ing Abu Halawa in the NII a t t ack (which i s ,

-37-



of course, the only

way in

which

tha t

statement would

be

inconsis tent

with his

test imony in

t h i s

case) .

The

prosecutor ' s

quest ion

as

to whether everything he had previously sa id about

Muhannad Abu Halawa,

about Bashir

Nafa, Omar

Ka'adan,

[was]

correc t

d i rec t l y fol lowed quest ioning re la ted to an inc ident

other than the NII a t tack.

17

Ear l i e r in the same examination, Al

Khatib

t e s t i f i ed spec i f i ca l ly

about

the

NII

a t tack, and tha t

test imony

was

consis ten t with his test imony

in

th i s case. In

par t i cu la r ,

when

asked

what

he

knew

about

the

a t tack

a t

the

National

Insurance Ins t i tu te in East

Jerusalem[,] Al Khatib

answered:

The National

Insurance

In s t i tu te case has no connect ion to

us. I was

asked about t h i s

case. I was interviewed

about

i t ,

and

they were unable

to

prove

anything and

then they

threa tened

tha t

they would bring

in my wife, I don ' t

want

to t a lk about

the

nast iness

there .

I

did

not confess

to

tha t ,

t

had

nothing

to

do

with me

and

t

i s

not

in

my

record.

17

See

Tolchin

Decl . , Ex.

18 (Damara

Tr ia l Tr. of Al Khatib)

[Dkt. No 331-18

a t E F p. 18] ( Q.

Is t correc t tha t

in

tha t

same year ,

2000-2001, you

heard

on the radio

tha t there were

confronta t ions

with I s rae l i army forces in the Ein Arik area and

you drove

there with Nasser Nafez Darama, and then he got out

and

s t a r t ed

shoot ing and

you got

angry

a t him?

A: Correct , but

these are

his

words,

not mine.

Q:

But

you sa id tha t

to the

pol ice . A:

In another

case.

Which i s unre la ted

to

th i s case

You are

ta lking

about something tha t

happened e ight

years

ago. Q: According to what I understand from you, everything

tha t you have sa id

about

Muhannad Abu Halawa,

about

Bashir Nafa,

Omar Ka'

adan,

everything

i s cor rec t but

whatever i s

re la ted to

the

Defendant

i s incorrec t .

Correct?

A:

Yes. )

-38-



Tolchin Decl . , Ex. 18 ( t r . of

mil i t a ry

t r i a l of

Mahmoud Damara,

test imony of Bashar Al Khatib) a t ECF p. 16 [Dkt. No 331-18]

(emphasis added)

When asked again about the a t tack a t the

National

Insurance Ins t i t u t e in

East Jerusalem,

he responded

I

have no connect ion to tha t and

fur ther

t e s t i f i e d t ha t he only

signed the wri t t en s tatements because they th rea tened to

a t t ack

my wife .

Id. a t 17 (emphasis added).

In

sum, Al

Khat ib ' s

test imony a t Damara's t r i a l

was

genera l ly consis ten t , not

inconsis ten t ,

with

his

test imony

in

t h i s

case.

His

one

word

response

to a vague quest ion by

the

prosecutor

does

not change

t ha t equat ion.

Because Pla in t i f f s have not shown tha t Al

Khatib

gave

inconsis ten t test imony a t

Damara's

t r i a l ,

or

tha t they ever

cross

examined him regarding such test imony,

the

tes t imony i s

not admissible under

Rule

801 (d) (1) A) and

cannot

be

used a t

t r i a l

to

support

t he i r

theory t ha t Abu Halawa ki l l ed Gilmore.

18

4 Statements

o

Mas1amani

Fourth,

Pla in t i f f s

re ly on Maslamani' s

January

18, 2001,

custodia l

s ta tement tha t

Abu

Halawa took c re d i t for car ry ing out

18

Having so concluded, the Court need not address Defendants '

argument t ha t the Hebrew t r ansc r i p t from

the

Damara t r i a l

does not

even

conta in s tatements

of

Bashar Al Khatib

because

he

t e s t i f i e d in Arabic and the statements in the Hebrew t r ansc r i p t

are

those

of an

IDF

soldier

serv ing

as an

i n t e rp re t e r .

Reply

a t 14.

-39-



(deposed declarant was not

unava i lable

under Rule 8 04

(a)

5)

because t ha t subsec t ion

i s

concerned

with

the absence of

tes t imony,

r a t h e r

than the phys ica l absence of the dec la rant )

(c i t a t ions

omit ted) .

P l a i n t i f f s

contend t ha t

Maslamani

never the less

i s

unava i lable

because they did not have

the oppor tuni ty

to

redepose him a f t e r he purpor ted ly agreed to

the

admission o f h is

January 2001 cus tod ia l

s ta tement as

evidence agains t him a t

h is

cr imina l

t r i a l

in I s r a e l

in

2003.

Pls . '

Opp

n

a t

5.

Even

i

t h i s was

r e levan t ,

Pl a i n t i f f s

do not c i t e

any evidence

ind ica t ing

t ha t

Maslamani agreed to

the admission o f his

s ta tement as

it

r e l a t e d

to the

NII

at tack , for

which

Maslamani

was

never charged.

As Defendants point

out , the

I s r a e l i

m i l i t a ry

t r i b u n a l

quoted in

i t s

en t i r e t y the

por t ion o f

the

Misalmani cus tod ia l

sta tement

deemed

admit ted

by

consent ,

and

it

did

not inc lude

the

por t ion r e l a t i ng

to

the shoot ing

of GilmoLe

a t the National Insurance I n s t i t u t e .

Rather ,

it r e l a t e s to

the

shoot ing

of

Ta l i a and Binyamin Kahane,

for

which Misalmani

was conv ic t ed .

Defs . '

Reply

a t

17 (c i t ing Tolchin Decl . , Ex. 7

(verdic t)

)

a t

5,

28-31) .

Nor do Pl a i n t i f f s

expla in

why

Maslamani s

agreement

to admit s ta tements inculpat ing Abu Halawa

a t his cr imina l t r i a l i s

su f f i c i en t l y

r e levan t

to

t h i s

case t ha t

-41-



the i r inab i l i ty to redepose

him on

the subject

renders

him

unavai lable .

20

Second, even i f Maslamani was unavailable, as

Defendants

point out , the

par t

of

his sta tement

implicat ing Abu

Halawa in

the NII a t tack

was exculpatory,

not inculpatory .

Maslamani

did

not

confess

any re spons ib i l i ty for

the

NII a t tack; he

blamed Abu

Halawa. As the Supreme Court has

held,

Rule

804(b)

(3)

does not

allow admission

of

non-se l f - inculpatory s tatements , even i f

they

are

made

within

a

broader

nar ra t ive

tha t

i s

general ly

s e l f -

inculpatory . Williamson

v.

United

Sta tes ,

512 U.S. 594, 600-01

(1994); see also

Fed.

R. Evid. 804, Advisory

Committee

Notes to

exception 3 ( [A]

statement

admitt ing

gu i l t

and

impl ica t ing

another person,

made while

in custody,

may well be motivated

by

a desi re

to

curry favor with the

author i t i es

and hence

f a i l

to

qual i fy as agains t in te re s t . ) .

Because Maslamani

i s

avai lable

and his test imony about the

NII

a t tack was

not

contrary

to his penal

i n t e r e s t s ,

his

20

Pla in t i f f s

argue

that ,

under operat ion of

I s rae l i mil i t a ry

law,

Maslamani 's

admission

of the

sta tement cons t i tu ted an

endorsement

by

Maslamani

of

a l l the

fac ts contained

in the

s ta tement . Pls . '

Opp'

n

a t 5. Even

i f t h i s i s

t rue , and even

i f Maslamani agreed to the admission of the ent i re sta tement as

opposed

to

mere_ly the port ions

per ta ining to

the

a t tack

for

which he was convicted, Pla in t i f f s do

not

explain how the lega l

consequences

of tha t admission under I s rae l i mil i t a ry law i s

re levant to

the

admiss ibi l i ty of

the

sta tement

under the

Federal

Rules of Evidence.

-42-



cus tod ia l s ta tement i s not admiss ib le

under

Rule

8 04 b)

3)

and

cannot be used a t

t r i a l

to prove t ha t Abu Halawa

k i l l ed

Gilmore.

21

5

The Expert Opinion

o Alon Eviatar

Fi f th and f i na l ly , Pl a i n t i f f s have re ta ined , as an expe r t

witness , former IDF

i n t e l l igence

of f i ce r and Department Head of

Pales t in ian Affa i rs ,

Alon Eviatar ,

who opines, among

o ther

th ings , t ha t it i s more

l i ke l y

than

not , tha t Muhanad

Abu

Halawa

ca r r i ed

out

the

October

30,

2000

murder

of

Mr.

Gilmore.

See Corrected Decl. of Alon Eviatar

( Eviatar Decl.)

33 [Dkt.

No 345 ]

P l a i n t i f f s argue tha t even

i

none of

the

foregoing

ev iden t ia ry

i tems

are admissible,

Evia ta r ' s

opinion i s

s u f f i c i e n t to

take

t he i r case to

a

jury .

Rule 702

of

the Federal Rules

of

Evidence

governs

the

admiss ib i l i t y of exper t test imony.

I t

provides t ha t a witness

who

i s

qua l i f i ed

as

an exper t

may t e s t i f y

in the

form

of an

opinion or otherwise i f : (a) the e xpe r t ' s

spec ia l i zed

knowledge

wil l

he lp

the t r i e r of fac t

to

understand the

evidence

or to

determine

a

fac t

in

i s sue ;

(b) the test imony

i s based on

su f f i c i en t

fac t s

or data ;

(c)

the

t e s t imony

i s

the

produc t

of

21

The Court also notes tha t even i

Maslamani'

s own s ta tement

was admissible ,

it i s

double hearsay because

it

merely recounts

Abu Halawa' s own out. , -of-court sta tement , which the Court has

a l ready

ru led i s

inadmiss ib le .

-43-



cumulative experience and

knowledge

and profess ional ins t inc t s

and i n tu i t i on . " Eviatar Decl.

32.

Eviatar does not, however, even consider these variab les in

reaching his

conclusion

tha t " i t i s very l ikely , and cer ta in ly

more

l ike ly than

not,

that Muhanad Abu

Halawa

carr ied out

the

October 30, 2000

murder

of Mr. Gilmore.

Id. 33.

Instead,

his

analys is i s devoted ent i re ly

to

expla in ing why he bel ieves

Pla in t i f f s '

hearsay.

evidence i s re l iab le .

See id. 34-64.

His

Declarat ion contains

no

discuss ion of

the

var ie ty

and

divers i ty

of

the

sources and/or types of

information

and

data [ . ] "

Nor

does he explain how his cumulative

experience

and

knowledge

as

an

IDF

in te l l igence off icer ,

as

opposed

to

commonsense

and general

deductive

pr inc ip le s tha t any non-expert

f inder

of fac t

would re ly on,

lead him

to

the conclusion

tha t

Abu

Halawa

was the l ike ly murderer.

Because Evia tar fa i l s to

consider

the very fac tors he

claims should be considered in

determining the s t rength

{l ike ly

accuracy) of an assessment or

conclus ion ,

he

has

not " re l i ab ly

applied his own methodology to

the

fac t s of

t h i s

case and,

therefore , h i s

opinion

does

not

sa t i s fy

Rule

702(d).

See,

e .g . ,

Strauss , 925 F.

Supp.

2d a t 441 ( [I] t i s well se t t l ed tha t

' [u ]nder

Daubert

and Rule 702, expert test imony should be

-45-



excluded i f the

witness

i s not ac tua l ly

applying

[the] expert

methodology. ' ) (c i t ing United Sta tes v.

Dukagjini,

326 F.3d 45,

54

(2d

Cir. 2003)).

Second, even

i f

Eviatar

had

f a i th fu l ly applied his own

methodology, his analysis i s based en t i r e ly on hearsay evidence

tha t the

Court has

already

ruled

i s inadmissible.

Evia tar Decl.

c n c n 34-64.

3

Although an expert

i s

en t i t l ed

to re ly

on

inadmissible

evidence in forming his

or her opinion, the expert

must

form

his

[or

her]

own

opinions

by

applying

his

[or her]

extensive

exper ience

and

a re l iab le

methodology

to

the

inadmissible

mater ia l s .

United

Sta tes v. Mejia,

545

F.3d

179,

197

(2d

Cir. 2008)

(quotation marks and

in te rna l

c i ta t ions

omitted);

see a lso

Esta te of Parsons I , 715 F. Supp. 2d a t 33 ( Expert opinions may

be based on hearsay,

but they

may

not

be a conduit for

the

in t roduct ion of

fac tua l

asser t ions tha t are not

based on

personal knowledge. )

(c i t ing

Fed.

R. Civ. P.

56(e) (1));

S t rauss , 9 5 F. Supp. 2d a t 445 (expert testimony

cannot

be

used

as

an excuse

to introduce

and summarize s t ra ight forward

3

Eviatar

a lso re l i e s

sta tements Pla in t i f f s do

sta tements and an April

magazine, Humat al-Areen.

on two other

se t s

of out -of-court

not re ly upon: Al Khatib 's

cus todia l

2001

edi t ion of

Force

17 ' s of f i c i a l

Eviatar Decl.

c Hc H

34-64.

-46-



fac tua l evidence

tha t

has not been admitted, such as

a

webpage

tha t says 'Hamas ca r r ied out a suicide bombing' ) .

Eviatar

has not applied any

specia l ized knowledge

to

the

hearsay mater ia l s

on which

he re l i e s . Instead, his analys is

consis t s ent i re ly of deductions and observat ions

tha t

flow

di rec t ly from

the

content of the hearsay sta tements

and would

be

se l f -evident to a layperson. For example,

he

suggests that

Al

Khatib 's four

cus todia l

sta tements should be believed ra ther

than

his

deposi t ion

test imony

in

th i s

case

because

a t

his

deposit ion, he did

not

seem to

have

been

a

neut ra l or

spontaneous witness , and his

test imony

was not continuous or

complete,

as t was in h is sta tements to I s rae l i pol ice .

Eviatar Decl.

51. Likewise, he

opines

tha t

Maslamani 's

custodia l sta tement i s re l i ab le because

t

i s fa i r ly de ta i led

in

respect

to both the circumstances in which Abu

Halawa

conveyed

the information to

Maslamani, and

the

par t i cu la rs

of

the

a t t acks .

Id.

56.

These are prec i se ly the type of

generalized

in ferences tha t a

l ay

person,

and the ju ry i t s e l f ,

could draw without

any

exper t ass is tance .

4

24

The

Court

a lso notes tha t

accepting

asser t ions would requi re the suspension of

example, he opines, without

any explanat ion

Khatib 's

cus todia l sta tements are

more

depos i t ion

test imony

because I s rae l i

pol ice

-47-

some o f

Evia ta r ' s

common sense. For

whatsoever,

tha t Al

re l iab le than his

in te r rogat ions

are



Evia tar '

s

discuss ion

of

the o ther evident iary

sources he

r e l i e s

on i s s imi la r ly generalized. He s ta tes

tha t

he has

followed

I ssacharof f ' 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 fac ts regarding

the

basis of th i s

opinion much l ess re la te t

to

his spec i f i c experience and

exper t ise .

The

c loses t

Evia tar

comes

to

drawing

on

his

extensive

experience

as an in te l l igence of f i cer i s

his

se l f -serving

conclusory

sta tements

tha t t

i s

l ikely

tha t the

IMFA

webpages

would not have

been

i s sued

by the

Sta te

of I s rae l unless

I s rae l i

author i t i es had a high

degree

of cer ta in ty regarding

the

fac ts

repor ted .

Id. < II 37.

He

opines . that th i s i s so

because

the

I s rae l i government

takes formal , public accusat ions

of

t h i s

type as very serious

matters

tha t

place

[] I s r ae l ' s

c red ib i l i ty on

the l ine

in

the eyes of

the

in te rna t iona l

community

and carry

the

r i sk

of an

unnecessary esca la t ion

of

tens ions with the

Palest inians.

Id. JI JI 35-36.

Eviatar

f a i l s , however,

to

discuss the

spec i f i c

protec t ions

tha t const ra in

the

IDF's

and

IMFA s

decis ion to

publ ish

more

personal ,

pr iva te and calm and l ess t ense than a

c iv i l

depos i t ion .

Evia tar

Decl. < II

57.

-48-



i n t e l l igence informat ion;

the

quantum

of

evidence

necessary

to

sa t i s fy the

IMFA s concerns

regarding

mainta in ing

i t s

c red i b i l i t y in the

i n t e rna t iona l community

and

avoiding

unnecessary

c onf l i c t

with

the

Pales t in ians ; from

whom in the IDF

the

IMFA

would have obtained i t s informat ion;

the

types of

sources

on which the IDF

would have

re l i ed ; and/or what

protocols

or

processes the IMFA

and IDF would have used to

confi rm

the accuracy

of

sources pr io r to

pub l ica t ion .

Because

Evia tar '

s

opinion

cons i s t s

en t i r e l y

of

genera l ized

and

conclusory asse r t ions

tha t l ack

any

bas i s in

h is spec ia l i zed

knowledge,

the

Court concludes tha t he i s simply repea t ing

hearsay evidence without

applying any exper t i se whatsoever,

a

prac t i ce

tha t

al lows

prohib i t ing hearsay .

[P la in t i f f s ]

to

circumvent

the

ru les

Mejia,

54 5 F.

3d a t

197

(quotat ion marks

and

i n t e rna l

c i t a t i ons

omitted)

.

In sum, Evia ta r '

s

opinion i s not based on any r e l i a b l e

pr inc ip les

[or]

methodology r e l i a b ly appl ied to

the

fac t s

of

the case, Daubert , 509 U.S. a t 595, and

does

not

draw

on any

spec ia l i zed knowledge t ha t would

be

he lp fu l

to the

jury , as i s

requi red by Rule 702.

Will iams v. I l l i n o i s ,

132

S . Ct. 2221,

-2-2-4-1---- -2-G-1-2--)-. - 1 R s ~ e a E i l le-merel-y---we±<jhs-

---t--he--ev-idenee----in

prec i se ly the same way as

would

a

t r i e r

of

fac t .

-49-



I t has

long

been t he law

in

t h i s Circu i t t ha t

'where

t he

ju ry

i s

j u s t as

competent to

cons ider and weigh t he evidence as

i s

an exper t witness and

j u s t

as well q u a l i f i e d t o

draw

t he

necessa ry conc lus ions there f rom, t i s

improper to

use opinion

evidence fo r

the purpose . '

Evans v.

Wash.

Metro.

Area

Trans.

Auth . , 674

F. Supp. 2d

175,

179-80 (D.D.C. 2009)

(quot ing Henkel

v .

Varner,

138 F.2d 934,

935

(D.C.

Cir .

1943)) ; see a l so United

St a t e s v.

Boney, 977 F.2d 624, 628 (D.C.

Cir .

1992) ( [Exper t ]

t es t imony

should

ord i na r i l y

not

extend

t o mat t e r s

wi th in the

knowledge o f laymen. )

United

Sta tes v .

Far r e l l ,

563

F. 3d

364,

377 (8th Cir . 2009) (exper t

usurped

j u ry func t ion

when

she

opined

on the s t r eng th

o f

t he Government 's case and

the

c r e d i b i l i t y of ts wi tnesses ) .

Consequent ly , Evia ta r '

s

opinion i s

not admiss ib le to prove

t h a t

Abu

Halawa k i l l e d

Gilmore.

As

6 Pla in t i f f s Have Not Presented Any Admiss ible

Evidence that bu Halawa i l led

Gi1more

discussed

above,

E vi a t a r ' s

exper t

op in ion i s

i nadm iss ib le and P l a i n t i f f s ' on ly

o ther

evidence t h a t Abu Halawa

k i l l e d Gilmore i s shee r hearsay , which

' coun t s

fo r noth ing '

on

summary

judgment . Greer ,

505

F.3d a t 1315.

Nor

have

P l a i n t i f f s demonst ra ted t ha t any of the evidence on

which

they

r e ly i s capable o f being conver ted

i n t o

adm iss ib le ev idence .

-50 -



Therefore,

Pla in t i f f s have

not

iden t i f i ed

any admissible

evidence to bring t he i r

case to a

ju ry

on

t he i r

foundat ional

a l lega t ion tha t Abu

Halawa

ki l l ed Gilmore and summary judgment

must be granted

for

Defendants.

25

B Plaint i f f s Supplemental l a ~ s

Pla in t i f f s

do not di rec t ly

address

whether the i r

supplemental claims also

require

proof tha t Abu

Halawa

ki l led

Gilmore. They

argue

sole ly tha t the

federa l

T claim

requi res

p la in t i f f s

to

prove

more

elements

than

the garden-var ie ty

supplemental cla ims. Pls . ' Opp' n

a t

8.

However, Pla in t i f f s

do

not

explain

how

t he i r quantum of

proof di f fe rs

on the i r

supplemental claims, nor do

they suggest tha t

such claims

can

prevai l without proof tha t Abu Halawa ki l l ed Gilmore.

Because

the Court has concluded

tha t

Pla in t i f f s

have

not

presented

any admissible

evidence tha t Abu Halawa ki l led

Gilmore, and Pla in t i f f s

have

advanced no other

basis

to support

25

Defendants also argue

tha t ,

even i f Pla in t i f f s

could

prove

tha t Abu

Halawa

ki l l ed

Gilmore, they

cannot prevai l

because the

T does

not permit c iv i l

lawsuits based on vicarious

l i a b i l i t y .

Defs. '

Mot.

a t 22-29.

The T

does

not

specify

whether it

permits act ions based on vicarious l i a b i l i t y and tha t i ssue i s

unresolved in

th i s Circui t . See

Esta te of

Parsons

I I ,

651 F.3.d

a t 133 (Tatel ,

J. concurring) Because

the Court has already

concluded t ha t P l a in t i f f s

f a i l to

present any

proof concerning

an

essent i a l

element of [ the i r ] case , Celotex Corp. ,

4

77 U.S.

a t 323, it ~ s unnecessary to reach th i s

i ssue .

-51-



t he i r

supplemental cla ims,

summary

judgment sha l l be

granted

on

these claims as wel l .

IV. ON LUSION

For the foregoing

reasons,

Defendants Motion for

Summary

Judgment

sha l l

be granted

and the

case

sha l l

be dismissed

in

i t s

en t i re ty .

n

Order

sha l l accompany t h i s Memorandum

Opinion.

Ju ly 28, 2014

Copies to: at torneys

on

record via

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