Linde v. Arab Bank, PLC

97 F.Supp.3d 287

Courtney LINDE, et al., Plaintiffs

v.ARAB BANK, PLC, Defendant.

No. 04–cv–2799 BMCVVP1.

United States District Court, E.D. New York.

Signed April 8, 2015.

Mark S. Werbner, Sayles Werbner, Dallas, TX, Peter A. Binkow, Law Offices of Lionel Z. Glancy, Neal Dublinsky, Glancy Binkow & Goldberg LLP, Los Angeles, CA, Steven M. Steingard, Stephen H. Schwartz, Kohn, Swift & Graf, PC, Philadelphia, PA, Aaron Schlanger, Naomi B. Weinberg, Joshua D. Glatter, Cindy T. Schlanger, Gary M. Osen, Osen LLC, Hackensack, NJ, Clyde T. Turner, Turner and Associates, North Little Rock, AR, James P. Bonner, Stone Bonner & Rocco LLP, Andrew David Friedman, Wechsler, Harwood, Halebian & Feffer, L.L.P., Shawn Patrick Naunton, Zuckerman Spader LLP, New York, NY, Peter R. Kolker, Semra Aylin Mesulam, Zuckerman Spaeder LLP, Washington, DC, Peter Raven–Hansen, Osen LLC, Oradell, NJ, for Plaintiffs.

Kevin Walsh, Anthony Paul Coles, Douglas Walter Mateyaschuk, Eric M. Falkenberry, Shand Scott Stephens, Steven J. Young, DLA Piper LLP, New York, NY, Brett Ingerman, DLA Piper US LLP, Baltimore, MD, for Defendant.

MEMORANDUM OPINION AND ORDER

BRIAN M. COGAN, District Judge.

Table of Contents

EVIDENCE AT TRIAL

INTRODUCTION	298
299

I.	Plaintiffs' Case	299
II.	Defendant's Case	305

STANDARD OF REVIEW	310
DISCUSSION	310

I. Sanctions Order 311

A.	Background	311
B.	The Effect of the Permissive Inference	313
C.	The Effect of the Preclusion Order	315
D.	The Solicitor General's Certiorari Brief	318

II.	“Act of International Terrorism”	322
III.	Causation	323

A.	Governing Law	324
B.	Jury Charge	328
C.	Sufficiency of the Evidence	328

IV.	Attribution to Hamas	330
V.	Scienter	331
VI.	Respondeat Superior	335
VII.	Evidentiary Rulings	337

A.	Authentication Generally	337
B.	Declarations Against Interest	338
C.	Foreign Law	343
D.	Israeli List of Unlawful Associations and Terrorist Organizations	344
E.	FinCEN Assessment	345
F.	Saudi Committee Experts	346

VIII.	Trial Structure	348
IX.	Defendant's 1292(b) Motion	350

CONCLUSION 350

INTRODUCTION

This case involves claims brought under the civil liability provisions of the Anti–Terrorism Act (“ATA”), 18 U.S.C. § 2333(a)et seq., against defendant Arab Bank, PLC. Plaintiffs are American citizens who were the victims, or relatives of victims, of 24 terrorist attacks in Israel and the Palestinian Territories. After a lengthy trial, a jury found that those attacks were perpetrated by the Palestinian terrorist group Harakat al-Muqawama al-Islamiya (“Hamas”) during the Second Intifada, a time of great violence between 2000 and 2005.² It also found that defendant knowingly provided financial services to Hamas by providing financial services to its operatives; to 11 charities controlled by Hamas; and to an organization called the Saudi Committee for the Support of the Intifada Al–Quds, an entity connected to the Saudi Arabian government that made payments to beneficiaries identified by Hamas-controlled organizations, including the families of Hamas suicide bombers and prisoners.

Before me is defendant's timely motion for judgment as a matter of law under Federal Rule of Civil Procedure 50. In the alternative, defendant has moved for a new trial under Rule 59 and for certification of an interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

EVIDENCE AT TRIAL

Much of the evidence that was introduced at trial had been previewed in detail in numerous pretrial rulings in this decade-old litigation. See, e.g., Linde v. Arab Bank, PLC, 269 F.R.D. 186 (E.D.N.Y.2010) ; Linde v. Arab Bank, PLC, 384 F.Supp.2d 571 (E.D.N.Y.2005). The following is a partial summary of the evidence presented over the course of the approximately six-week trial.

I. Plaintiffs' Case

Plaintiffs first called Evan Kohlmann, an international terrorism consultant, principally to determine whether or not Hamas—“a terrorist organization that was founded in approximately December of 1987”—had ever issued claims of responsibility for the 24 terrorist attacks at issue in this case. Mr. Kohlmann is an expert in international terrorism specializing in terrorist communications and previously has been so qualified in domestic and foreign cases. He has given similar testimony in criminal prosecutions. See United States v. Ali, No. 10–cr–187, 2011 WL 4583826, at *6 (D.Minn. Sept. 30, 2011) (“Kohlmann will testify regarding several communiques posted to the official al-Shabaab website, and that these communiques claim responsibility for certain events. Kohlmann's testimony as to these claims of responsibility, their source and their authenticity will assist the jury in understanding the discussions between the conspirators.”). Mr. Kohlmann testified that he had reviewed a list of the 24 attacks at issue and had concluded, based on his approximately twenty years researching Hamas communications, that “Hamas has indeed[ ] issued communiques or other claims of responsibility, in which they have indicated their involvement or at least claimed their involvement in these various attacks.” Mr. Kohlmann testified that Hamas issues claims of responsibility for terrorist attacks in order to: (1) “announce their presence both on a local stage as well as international stage”; (2) “attract new members”; and (3) “solicit financial donations.”

As part of his testimony, Mr. Kohlmann authenticated two websites as sources of Hamas communications: Palestine-info.com and alqassam.ps. He explained that the first website represents the political wing of Hamas, and the second is the website for Hamas' military wing. Mr. Kohlmann described the factors, which were “both extrinsic as well as intrinsic,” that led him to conclude that these were Hamas websites. He testified that those factors included: the reliance by the United States and other governments on the webpages as authentic sources of Hamas communications; the language and facts used in postings; the posting of exclusive interviews with Hamas leaders and nonpublic details of their lives; and the fact that the websites contained official Hamas seals and watermarks.

After authenticating the websites, Mr. Kohlmann also authenticated many communiques, which he testified are official communications from a terrorist group, in which Hamas took credit for the attacks at issue in this case. Among them were video wills of individuals who were about to commit terrorist attacks. For instance, Mr. Kohlmann authenticated the video will of Raed Abdul Hamid Misk, which was received in evidence over defendant's objection.³ Mr. Kohlmann identified Misk and concluded that his video will was an authentic claim of responsibility by Hamas because, among other reasons, the video will was available in the “martyr” subsection of the alqassam.ps website and because Misk identified himself as being part of the military wing of Hamas. Mr. Kohlmann also authenticated portions of the websites that were not claims of responsibility, but were calls for donations to Hamas at a particular Arab Bank account. These postings were also admitted in evidence over defendant's objection.

Mr. Kohlmann identified Osama Hamdan as a senior Hamas spokesman and an account holder at Arab Bank in Lebanon. The latter was based on an authentication of Hamdan's passport, which was filed in connection with Hamdan's obtaining an Arab Bank account, and which was received in evidence. In connection with this testimony, Mr. Kohlmann authenticated certain bank transfer (“SWIFT”) records processed through Arab Bank for Hamdan's account, and in which the beneficiary of the transfer was listed as “Harakat al Muqawamah al Islamiyah Hamas.” Through Mr. Kohlmann, plaintiffs introduced a CNN interview with Hamdan, in which Hamdan claimed responsibility for the March 27, 2002 Park Hotel bombing on behalf of Hamas.

During cross-examination, Mr. Kohlmann conceded that with respect the January 29, 2004 suicide bombing on Bus No. 19 (discussed further below), another terrorist organization, the Al–Aqsa Martyrs Brigade (“AAMB”), along with Hamas, issued a claim of responsibility for the attack. In addition, defendant pointed out the lack of corroboration for some of Hamas' claims of responsibility and Mr. Kohlmann acknowledged that Hamas has motives to lie about such claims for propaganda purposes. Ultimately, however, this did not change Mr. Kohlmann's conclusion that Hamas claimed responsibility for each of the attacks at issue in this case.

Plaintiffs next called Dr. Matthew Levitt, a director at the Washington Institute for Near East Policy, who has been qualified as an expert on Hamas in federal court on numerous other occasions. Prior to his current role, Dr. Levitt did counter-terrorism work for the United States Department of Treasury, the FBI, and the United States Department of State. Initially, Dr. Levitt provided “a little bit of Hamas 101,” describing the organization as an “extremist group” that was designated as a terrorist group by the United States. He explained that terrorist designations—which include the terms Foreign Terrorist Organization (“FTO”), Specially Designated Terrorist (“SDT”), and Specially Designated Global Terrorist (“SDGT”)—are labels used by the United States Departments of State and Treasury to “make it more difficult for organizations that are involved in illicit activity, in this case terrorist activity, to be able to raise, launder, move and access money.” Dr. Levitt also introduced the jury to the role of designation lists, or “black list[s],” issued by the United States Office of Foreign Asset Control (“OFAC”).⁴

Dr. Levitt testified about numerous Hamas leaders. One of the key individuals among those was Sheikh Ahmed Yassin, a paraplegic, who was a religious figure and one of the founders of Hamas, and who was regarded as Hamas' spiritual leader. Dr. Levitt also spoke about Salah Shehadah, the one-time leader of Hamas' military wing, which is known as the Izz al-Din al-Qassam Brigades. During this testimony, Dr. Levitt authenticated the terrorist designations of various individuals by the United...