Reuven Gilmore v. Palestinian Interim Self-Government Authority ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 14, 2016 Decided December 13, 2016
No. 14-7129
REUVEN GILMORE, INDIVIDUALLY, AS THE ADMINISTRATOR OF
THE ESTATE OF ESH KODESH GILMORE AND AS NATURAL
GUARDIAN OF PLAINTIFFS ELIANA GILMORE AND DROR
GILMORE, ET AL.,
APPELLANTS
v.
PALESTINIAN INTERIM SELF-GOVERNMENT AUTHORITY, ALSO
KNOWN AS PALESTINIAN NATIONAL AUTHORITY, ALSO KNOWN
AS PALESTINIAN AUTHORITY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:01-cv-00853)
Kent A. Yalowitz argued the cause for appellants. With
him on the briefs were Robert J. Tolchin and Meir Katz.
Mitchell R. Berger argued the cause for appellees The
Palestinian Authority and Palestine Liberation Organization.
With him on the brief were Pierre H. Bergeron, John A.
Burlingame, Alexandra E. Chopin, and Gassan A. Baloul.
2
Before: GRIFFITH and WILKINS, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: Esh Kodesh Gilmore
(“Gilmore”), a United States national, was killed in a shooting
attack in Jerusalem on October 30, 2000. His family
members and estate (collectively, “Appellants”) filed suit
against the Palestinian Interim Self-Government Authority
(“PA”) and the Palestine Liberation Organization (“PLO”)
(collectively, “Appellees”) asserting claims under the Anti-
Terrorism Act, 18 U.S.C. § 2333, and related common law
theories.
After years of litigation, the District Court granted
summary judgment in favor of Appellees. Appellants
challenge the judgment, along with the vacatur of Appellees’
defaults and the denial of Appellants’ motion to compel the
production of intelligence materials. Appellees challenge the
District Court’s denial of a motion for judgment on the
pleadings for lack of personal jurisdiction. We have
jurisdiction to review the final decisions of the District Court
under 28 U.S.C. § 1291. For the reasons set forth below, we
affirm each of the District Court’s challenged orders.
I.
Gilmore was a private security guard at an East Jerusalem
branch office of the National Insurance Institute of Israel. On
October 30, 2000, he was shot and killed while on duty. The
State of Israel has not prosecuted or convicted anyone in
connection with the shooting.
Appellants filed suit against Appellees and individual
defendants on April 18, 2001. Appellees “failed to plead or
3
otherwise defend th[e] action,” so default was entered against
them on December 20, 2001. J.A. 85. A month and a half
later, Appellees moved to vacate the default. Appellees and
individual defendants also moved to dismiss, arguing (1) the
suit was a politically-motivated attack on the PA and
therefore non-justiciable, (2) “Palestine [was] a state under
U.S. and international law” and therefore Appellees were
entitled to sovereign immunity, and (3) “[p]ersonal
[j]urisdiction [was] [l]acking [o]ver the [i]ndividual
[d]efendants.” J.A. 85.9-85.31. The District Court vacated
the default “in light of the strong preference in this
jurisdiction for rulings on the merits.” J.A. 86. For a variety
of reasons, however, the District Court did not rule on the
motion to dismiss until March 7, 2006, when it granted the
motion as to the individual defendants but denied the motion
as to Appellees.
After the ruling, Appellees failed to file a timely answer.
The District Court again entered default against Appellees on
January 29, 2007. Over the summer of 2007, the District
Court held damages hearings at which Gilmore’s family
testified. On November 15, 2007, Appellees moved to vacate
the second default and filed an answer. In a declaration
submitted with the motion, the PA’s Prime Minister, Salam
Fayyad, explained that he “became aware” of a letter from
U.S. Secretary of State Condoleezza Rice, which encouraged
Appellees to “respond to U.S. legal proceedings in a good
faith and a timely manner.” Decl. of Salam Fayyad ¶ 11, J.A.
130. Prime Minister Fayyad assured the District Court that he
“instructed new counsel that [Appellees] will participate fully
in this and other litigation, in a cooperative manner, including
complete participation in the discovery process.” Id. ¶ 13,
J.A. 130. On December 28, 2009, the District Court vacated
the second default and, to mitigate prejudice to Appellants,
ordered Appellees to: (1) reimburse Appellants for attorneys’
4
fees and costs incurred as a result of the default, (2) stipulate
that Appellants “need not testify again and that their
testimony from the damages hearing may be read into the trial
record,” and (3) post a $1 million bond. J.A. 155-174.
Following years of discovery, Appellees submitted a
privilege log to Appellants on March 4, 2013. The log
disclosed twenty-five pages of material generated by the PA’s
intelligence agency, the General Intelligence Services
(“GIS”), which were withheld under the state-secrets and law-
enforcement privileges. Appellants moved to compel the
production of those materials, arguing principally that
Appellees should produce the GIS materials, and alternatively
that the District Court should “conduct an in camera review
of the documents to determine whether any privileges apply.”
J.A. 240-258. At a status conference, Appellees argued that
ex parte briefing would need to accompany in camera review
because it would be “very difficult for [the District Court] to
review the documents and reach an assessment of them
without additional information that should not be disclosed
publically or to [Appellants].” Mot. Hr’g Tr. 14:19-24, J.A.
296. The District Court subsequently ordered Appellees to
file, sealed and ex parte, the GIS materials and “an
explanatory Memorandum of those documents, not to exceed
10 pages.” J.A. 282. On June 6, 2013, following in camera
review aided by Appellees’ ex parte briefing, the District
Court denied Appellants’ motion to compel the production of
the twenty-five pages of GIS materials. The District Court
also denied Appellants’ motion to unseal the memorandum
submitted ex parte by Appellees.
Appellees subsequently moved for summary judgment,
arguing that at the close of fact discovery, Appellants had no
admissible evidence linking Gilmore’s murder to any
particular person, let alone Appellees. Appellants argued that
5
Gilmore was killed by Muhanad Abu Halawa (“Halawa”), a
deceased former soldier in the PA’s security apparatus known
as “Force 17,” and that Appellees were vicariously liable for
Halawa’s actions. In support of that theory, Appellants
proffered the following evidence:
 Two statements published online by the Israel
Ministry of Foreign Affairs;
 A passage from a non-fiction book entitled The
Seventh War, which recounted a prison interview that
implicated Halawa;
 A statement by one of Halawa’s associates, which was
written and signed while in the custody of Israeli
police;
 The testimony of Halawa’s colleague during the trial
of Halawa’s supervisor; and
 An expert report authored by a former intelligence
officer of the Israel Defense Forces.
The District Court declared this evidence inadmissible,
and granted Appellees’ motion for summary judgment.
II.
Appellees urge this Court to “affirm the judgment below
on the alternative ground that the court below lacked personal
jurisdiction over [them].” Appellees’ Br. at 52. We address
this argument first. See Sinochem Int’l Co. v. Malay. Int’l
Shipping Corp., 549 U.S. 422, 430-31 (2007) (citing Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 93-102 (1998))
(“[A] federal court generally may not rule on the merits of a
case without first determining that it has jurisdiction over the
category of claim in suit (subject-matter jurisdiction) and the
parties (personal jurisdiction).”). We conclude that Appellees
have waived their challenges to personal jurisdiction.
6
“It is . . . elementary that a defense of . . . lack of personal
(as opposed to subject matter) jurisdiction is waived unless
the defense is asserted by a pre-answer motion (i.e., Rule
12(b)) or in a responsive pleading, i.e., the answer or a timely
amendment thereto.” Chatman-Bey v. Thornburgh, 864 F.2d
804, 813 (D.C. Cir. 1988) (en banc) (citing FED. R. CIV. P.
12(h)(1), and 5C CHARLES A. WRIGHT, ARTHUR R. MILLER &
EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE
§ 1388 (2d ed. 1969)).
In their pre-answer motion, Appellees argued that
“Palestine [was] a state under U.S. and international law” and,
therefore, they were entitled to sovereign immunity under the
Foreign Sovereign Immunities Act (“FSIA”). J.A. 85.24.
Appellees now raise a constitutional personal-jurisdiction
defense, which they argue was preserved by their invocation
of the FSIA. At oral argument, Appellees insisted that “a
sovereign immunity challenge is a challenge to both personal
jurisdiction and subject matter jurisdiction,” and a “substantial
jurisdictional challenge” should not be deemed waived just
“because the motion said ‘sovereign immunity’ and did not
articulate the words ‘personal jurisdiction.’” Oral Arg. at
22:50-23:45.
This argument is foreclosed by Foremost-McKesson, Inc.
v. Islamic Republic of Iran, 905 F.2d 438 (D.C. Cir. 1990). In
Foremost-McKesson, Iran went a step further than Appellees:
it expressly argued that “[b]ecause under the FSIA personal
jurisdiction cannot exist unless there is subject-matter
jurisdiction, . . . the Court also lacks personal jurisdiction,” id.
at 453; in other words, Iran did “articulate the words ‘personal
jurisdiction.’” This Court, however, rejected Iran’s argument
because statutory and constitutional grounds for personal
jurisdiction are different – a court must have both to hear a
case. Accordingly, we held that a “defense resting on
7
personal jurisdiction involv[ing] a statutory claim” does not
preserve “the separate constitutional ground for a claim of
lack of in personam jurisdiction.” Id. This reasoning applies
with equal force here: in their 2002 motion to dismiss,
Appellees’ “only defense resting on personal jurisdiction
involved” the FSIA and, therefore, they have waived “the
separate constitutional ground for a claim of lack of in
personam jurisdiction.” Id.Appellees also argue that their personal-jurisdiction
defense was not “available” to them until the Supreme
Court’s decision in Daimler AG v. Bauman, 134 S. Ct. 746(2014). “[A] party is only required to consolidate Rule 12
defenses and objections that are ‘then available to the party.’”
5C CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 1388 (3d ed. 2014) (quoting
FED. R. CIV. P. 12(g)). A defense is “available” unless “its
legal basis did not exist at the time of the answer or pre-
answer motion, or the complaint does not contain facts
sufficient to indicate that a defense was possible.” Chatman-
Bey, 864 F.2d at 813 n.9 (citations omitted). At the time of
Appellees’ pre-answer motion in 2002, the “legal basis” for
their personal-jurisdiction defense did exist; there was no
Supreme Court or in-circuit precedent rendering the personal-
jurisdiction defense “for all practical purposes impossible for
the defendants to interpose.” Id. In other words, the defense
was “available” at the time.
An examination of the Second Circuit’s recent decision
in Waldman v. Palestine Liberation Organization, 835 F.3d
317 (2d Cir. 2016) illustrates the point. Second Circuit
precedent “permitted general jurisdiction on the basis that a
foreign corporation was doing business through a location
branch office in the forum.” Gucci Am., Inc. v. Weixing Li,
768 F.3d 122, 135 (2d Cir. 2014) (citations omitted). The PA
8
and PLO were arguably “doing business through a location
branch office.” See Klinghoffer v. S.N.C. Achille Lauro Ed
Altri-Gestione Motonave Achille Lauro in Amministrazione
Straordinaria, 937 F.2d 44, 51-52 (2d Cir. 1991) (noting that
the PLO owned a building in Manhattan that it used as an
office). Consequently, in the Second Circuit, the “legal basis”
for the PA and PLO’s personal-jurisdiction defense arguably
“did not exist at the time” while this precedent was
controlling. See Chatman-Bey, 864 F.2d at 813 n.9. In
Daimler, the Supreme Court “expressly cast doubt on” that
Second Circuit precedent. Gucci, 768 F.3d at 135.
Accordingly, the Second Circuit held that the PA and PLO
“did not waive or forfeit their objection to personal
jurisdiction” because the objection was not “available” before
Daimler. Waldman, 835 F.3d at 328.
No similar precedent existed in this Circuit and,
therefore, the “legal basis” for Appellees’ personal-
jurisdiction defense did exist at the time; the defense was
“available.” See Chatman-Bey, 864 F.2d at 813 n.9.
Therefore, Appellees waived their personal-jurisdiction
defense by failing to assert it in their pre-answer motion.
III.
We next turn to the District Court’s vacatur of two
defaults, which we review “for abuse of discretion, keeping in
mind the federal policy favoring trial over default judgment.”
Whelan v. Abell, 48 F.3d 1247, 1258 (D.C. Cir. 1995).
Appellants argue that Appellees were “essentially
unresponsive” prior to the entry of two defaults, and that
“should have been the end of the [District Court’s] inquiry.”
Appellants’ Br. at 31-32. The Federal Rules of Civil
Procedure delineate the standards governing the entry and
vacatur of defaults and default judgments. See FED. R. CIV. P.
9
55(a) (entering defaults), 55(b) (entering default judgments),
55(c) (vacating defaults), 60(b) (vacating default judgments).
In H.F. Livermore Corp. v. Aktiengesellschaft Gebruder
Loepfe, 432 F.2d 689 (D.C. Cir. 1970), this Court articulated
the policy reasons for allowing default judgments: “when the
adversary process has been halted because of an essentially
unresponsive party . . . ., the diligent party must be protected
lest he be faced with interminable delay and continued
uncertainty as to his rights.” Id. at 691; see 10A CHARLES A.
WRIGHT, ARTHUR R. MILLER & MARY K. KANE, FEDERAL
PRACTICE AND PROCEDURE § 2681 (3d ed. 2016) (discussing
H.F. Livermore as an “apt expression” of the “policy reasons
for allowing default judgments”). However, the rationale for
entering default judgments does not govern the analysis for
vacating defaults; this Court has never held that when a
defendant has been “essentially unresponsive,” courts are
forbidden from vacating defaults.1
Rather, district courts may vacate “an entry of default for
good cause.” FED. R. CIV. P. 55(c). The “good cause”
standard “frees a court . . . from the restraints of Rule 60(b)
[conditions for vacating default judgments] and entrusts the
determination to the discretion of the court.” 10A CHARLES
A. WRIGHT, ARTHUR R. MILLER & MARY K. KANE FEDERAL
PRACTICE AND PROCEDURE § 2694 (3d ed. 2016). “[E]xercise
of that discretion entails consideration of whether (1) the
default was willful, (2) a set-aside would prejudice plaintiff,
and (3) the alleged defense was meritorious . . . .” Keegel v.
Key W. & Caribbean Trading, 627 F.2d 372, 373 (D.C. Cir.
1980) (citations omitted).
1
Indeed, even default judgments may be vacated when the
defaulting party was, for some period of time, “essentially
unresponsive.” See FED. R. CIV. P. 60(b) (listing several conditions
unrelated to responsiveness or willfulness).
10
Following the Keegel framework, the District Court first
found that Appellees’ defaults were willful. Second, it found
that vacatur would cause prejudice to Appellants, but
mitigated the prejudice by requiring Appellees to: (a)
reimburse Appellants for attorneys’ fees and costs incurred as
a result of the default, (b) stipulate that Appellants “need not
testify again and that their testimony from the damages
hearing may be read into the trial record,” and (c) post a
$1 million bond. J.A. 155-174. Third, the District Court
found that Appellees raised “meritorious” defenses. For the
purposes of vacating defaults, “[d]efendants’ allegations are
meritorious if they contain even a hint of a suggestion which,
proven at trial, would constitute a complete defense.” Keegel,
627 F.2d at 375 (internal quotation marks and citations
omitted). Appellees satisfied this modest requirement. Even
when a default is willful, a district court does not necessarily
abuse its discretion by vacating a default when the asserted
defense is meritorious and the district court took steps to
mitigate any prejudice to the non-defaulting party. See, e.g.,
Whelan, 48 F.3d at 1258-59 (affirming the vacatur of a default
as to most claims, despite “the record suggest[ing] intentional
delay”).
Appellants argue that the District Court abused its
discretion by considering factors other than those articulated
in Keegel. Rule 55(c)’s “good cause” determination is a
balance of the equities, Whelan, 48 F.3d at 1259-60, that is
guided principally – but not exclusively – by the Keegel
factors. See Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96
(2d Cir. 1993) (observing that in addition to the Keegel
factors, “[o]ther relevant equitable factors may also be
considered”). The “good cause” standard is designed to
empower courts to consider the equities that specially arise in
a given case. See 10A CHARLES A. WRIGHT, ARTHUR R.
MILLER & MARY K. KANE FEDERAL PRACTICE AND
11
PROCEDURE § 2696 (3d ed. 2016) (“Rule 55(c) is addressed to
the trial court’s discretion, which is exercised in light of all
the circumstances of the individual situation . . . .”).
Accordingly, the District Court properly credited the equitable
considerations raised by the foreign defendants in this case,
and did not abuse its discretion merely because those
considerations fell outside the Keegel framework. The
District Court ultimately determined that upon consideration
of all the factors – those articulated in Keegel and not – this
matter was best resolved on the merits, which is hardly a
remarkable conclusion. See Keegel, 627 F.2d at 375(“[C]ourts . . . universally favor trials on the merits.” (internal
quotation marks and citations omitted)).
In light of the “federal policy favoring trial over default
judgment,” Whelan, 48 F.3d at 1258, we conclude the District
Court did not abuse its discretion in finding “good cause” to
vacate Appellees’ defaults.
IV.
We turn to consider the District Court’s denial of
Appellants’ motion to compel the production of purportedly
privileged materials, based on in camera review with the
assistance of ex parte briefing.
Following years of discovery, Appellees submitted an
untimely privilege log to Appellants. The log disclosed the
existence of twenty-five pages of materials generated by the
PA’s intelligence agency, but withheld those materials as
privileged. At Appellants’ suggestion, the District Court
reviewed the intelligence materials in camera. In response,
Appellees explained to the District Court that it would be
“very difficult . . . to review the [intelligence materials] and
reach an assessment of them without additional information
that should not be disclosed publically or to [Appellants].”
12
Mot. Hr’g Tr. 14:19-24, J.A. 296. Consequently, the District
Court ordered Appellees to submit ex parte “an explanatory
Memorandum of those documents, not to exceed 10 pages.”
After reviewing the twenty-five pages of intelligence
materials in camera with the assistance of the ex parte
memorandum, the District Court concluded that the
documents offered no relevant information that was not
already in Appellants’ possession.
A.
Appellants argue that by deciding the motion based on in
camera review with the assistance of the ten-page ex parte
memorandum, the District Court violated Appellants’ Fifth
Amendment due process rights.
The Supreme Court “has approved the practice of
requiring parties who seek to avoid disclosures of documents
to make the documents available for in camera inspection,
and the practice is well established in the federal courts.”
United States v. Zolin, 491 U.S. 554, 569 (1989) (citations
omitted).
However, ex parte proceedings should be employed to
resolve discovery disputes only in extraordinary
circumstances. Cf. Abourezk v. Reagan, 785 F.2d 1043, 1061
(D.C. Cir. 1986) (Ginsburg, R.B., J.) (“Only in the most
extraordinary circumstances does our precedent countenance
court reliance upon ex parte evidence to decide the merits of a
dispute.”). “The openness of judicial proceedings serves to
preserve both the appearance and the reality of fairness in the
adjudications of United States courts.” Id. at 1060-61.
Nevertheless, “communications between a judge and one
party are not per se deprivations of the due process rights of
the opposing party . . . .” Clifford v. United States, 136 F.3d
144, 149 (D.C. Cir. 1998) (citation omitted).
13
In Clifford, this Court catalogued some of the
circumstances in which ex parte submissions have been
permitted:
Ex parte submissions are permissible to
determine whether documents sought by a
party enjoy a privilege against discovery, see In
re Application of Eisenberg, 654 F.2d 1107,
1112 (5th Cir. Unit B 1981); cf. Kerr v. United
States Dist. Court, 426 U.S. 394, 405 (1976),
‘to prevent frustration of a statutory purpose to
limit access to Government papers,’ In re
Taylor, 567 F.2d 1183, 1188 (2d Cir. 1977), or
‘to resolve fears of intimidation of a witness,’
In re Paradyne Corp., 803 F.2d [604][,] 612
[(11th Cir. 1986)].
136 F.3d at 149; see also Abourezk, 785 F.2d at 1060-61(listing similar exceptions).
These “extraordinary circumstances” share a common
feature: the need for secrecy in light of the substantial adverse
consequences of disclosure. Here, Appellants sought
intelligence materials generated in the midst of a geopolitical
conflict. The District Court was tasked with evaluating the
discoverability of those materials, which would have been
challenging without proper context. In light of the sensitive
nature of the disputed materials and the foreign policy
implications of disclosure, this case presents one of the
“extraordinary circumstances” in which it was not improper
for the District Court to consider a ten-page ex parte
explanatory memorandum. See Abourezk, 785 F.2d at 1060-
61.
14
B.
Appellants also challenge the substance of the District
Court’s decision to deny their motion to compel. “We review
district court rulings on discovery matters solely for abuse of
discretion, reversing only if the party challenging the decision
can show it was clearly unreasonable, arbitrary, or fanciful.”
Bowie v. Maddox, 642 F.3d 1122, 1136 (D.C. Cir. 2011)
(internal quotation marks and citations omitted).
Appellants first argue that Appellees waived any
privileges and, in the alternative, that no privilege protects the
intelligence materials in dispute. We need not address
whether Appellees properly invoked any privileges over the
intelligence materials because the District Court acted within
its discretion under Federal Rule of Civil Procedure 26(b).
Under Rule 26(b), the scope of discovery is defined, in part,
by “whether the burden or expense of the proposed discovery
outweighs its likely benefit.” FED. R. CIV. P. 26(b)(1).
Indeed, “[o]n motion or on its own, [a] [district] court must
limit the frequency or extent of discovery otherwise allowed .
. . if it determines that . . . the discovery sought is
unreasonably cumulative or duplicative . . . .” FED. R. CIV.
P. 26(b)(2)(C). “Rule 26 vests the trial judge with broad
discretion to tailor discovery narrowly . . . .” Crawford-El v.
Britton, 523 U.S. 574, 598 (1998).
The District Court examined the twenty-five pages of
intelligence materials and concluded, as to the “likely benefit”
of the proposed discovery, that the “documents had no great
significance” to Appellants’ claims. Then, it concluded that
the proposed discovery would “undermine important
interests” of Appellees, quoting Societe Nationale Industrielle
Aerospatiale v. U.S. District Court for the Southern District of
Iowa, 483 U.S. 522 (1987). Appellants argue that the District
15
Court erred because Societe Nationale applies only to
sovereign states and that the Palestinian Authority is not one.
But, that is beside the point; imposition on the “important
interests” of Appellees is properly weighed as a “burden”
under Rule 26(b), without regard to whether any party is a
sovereign. See In re Sealed Case (Medical Records), 381
F.3d 1205, 1215-18 (D.C. Cir. 2004) (reversing an order
granting a motion to compel because the district court failed
to weigh privacy interests as a “burden” under Rule 26). The
District Court, determining that the “burden” of discovery
outweighed the “likely benefit” and discharging its duty to
limit “unreasonably cumulative” discovery, exercised its
“broad discretion [under Rule 26] to tailor discovery narrowly
. . . .” See Crawford-El, 523 U.S. at 598.
Having reviewed the twenty-five pages of foreign
intelligence materials, we conclude the District Court’s
decision was not “clearly unreasonable, arbitrary, or fanciful,”
and therefore not an abuse of discretion. See Bowie, 642 F.3d
at 1136.
V.
Finally, we turn to the District Court’s grant of summary
judgment in Appellees’ favor, which was entirely predicated
on rulings that deemed Appellants’ evidence inadmissible
hearsay.
“Summary judgment is appropriate only if ‘there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.’” Johnson v. Perez,
823 F.3d 701, 705 (D.C. Cir. 2016) (quoting FED. R. CIV. P.
56(a)).
“[W]e review a trial court’s evidentiary rulings for abuse
of discretion and even if we find error, we will not reverse an
16
otherwise valid judgment unless appellant[s] demonstrate[]
that such error affected [their] substantial rights.” Bowie, 642
F.3d at 1134 (citation omitted). The District Court ruled that
Appellants’ evidence was inadmissible hearsay and “sheer
hearsay . . . counts for nothing on summary judgment.” Greer
v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007) (internal
quotation marks and citations omitted). “While a nonmovant
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.” Gleklen v. Democratic
Cong. Campaign Comm., Inc., 199 F.3d 1365, 1369 (D.C.
Cir. 2000) (emphasis in original).
“[E]xcept in the extraordinary situation of plain error, no
error can be claimed if at the time of the judge’s ruling the
counsel had made no offer of proof that would have fulfilled
the condition[s] [of admissibility].” United States v. Burnett,
890 F.2d 1233, 1240 (D.C. Cir. 1989) (citing FED. R. EVID.
103(a)(2), (d)); see also 5 JOSEPH M. MCLAUGHLIN, JACK B.
WEINSTEIN & MARGARET A. BERGER, WEINSTEIN’S FEDERAL
EVIDENCE § 103.20[5] (2d ed. 2013) (“In making an offer of
proof, counsel must be careful to articulate every ground on
which the evidence is admissible, since a ground not
identified at trial will not provide a basis for reversal on
appeal.”). The requirements to articulate grounds for
admissibility and to support those grounds with an offer of
proof are especially pertinent where, as here, the proponent
made little effort to assist the District Court in making the
evidentiary rulings.
A.
The District Court excluded two web pages from the
Israel Ministry of Foreign Affairs website, which Appellants
characterized as “Israeli government reports identifying Force
17
17 and Abu Halawa as having executed the murder [of
Gilmore], [which] are admissible under [Federal Rule of
Evidence] 803(8)[].” J.A. 733.
“A record or statement of a public office” is admissible if
“it sets out . . . factual findings from a legally authorized
investigation[] and . . . the opponent does not show that the
source of information or other circumstances indicate a lack
of trustworthiness.” FED. R. EVID. 803(8). “Rule 803(8)[] is
to be applied in a commonsense manner, subject to the district
court’s sound exercise of discretion . . . .” In re Korean Air
Lines Disaster, 932 F.2d 1475, 1481 (D.C. Cir. 1991)
(quotation marks and citation omitted).
At the top of each web page was the banner for the Israel
Ministry of Foreign Affairs and the author of each page was
identified only as “IDF [Israel Defense Forces] Spokesman.”
The first page offered background on Force 17, including an
assertion that it was responsible for “[a] shooting attack in
Jerusalem, in which a security guard was killed and another
wounded (30 October).” J.A. 728. The second page
announced the targeted killing of Halawa, who purportedly
“took part in” Gilmore’s murder. J.A. 729. The pages offer
no information explaining who made the findings or how they
were made.
Before the District Court, Appellants rested on a bare,
one-sentence assertion that the web pages were admissible
under Rule 803(8), but offered no further explication of how
the pages conveyed “factual findings from a legally
authorized investigation,” FED. R. EVID. 803(8). Without
more, the District Court did not abuse its discretion by ruling
18
that the two pages were not admissible under Rule 803(8).
See In re Korean Air Lines Disaster, 932 F.2d at 1481.2
B.
The District Court excluded excerpts from a non-fiction
book entitled The Seventh War, authored by an Israeli
journalist, Avi Issacharoff (“Issacharoff”), who conducted an
interview with a Palestinian prisoner, Karim Aweis
(“Aweis”). The book excerpt offered the following account:
“Halawa told Aweis that he wanted to announce to the media
that he assumed responsibility for the East Jerusalem attack
[killing Gilmore] on behalf of a new military wing of Fatah.”
J.A. 727.
This is triple hearsay: (1) Halawa’s statement to Aweis,
(2) Aweis’s statement to Issacharoff, and (3) Issacharoff’s
written account. In order to be admissible, “each part of the
combined statements [must] conform[] with an exception to
the rule [against hearsay].” FED. R. EVID. 805. The District
Court ruled that Halawa and Aweis’s statements were
inadmissible.
Appellants argue that Aweis’s statement was a party
admission because Aweis was purportedly an “employee” of
the PA. A statement is not hearsay if “[t]he statement is
offered against an opposing party and . . . was made by the
2
Appellants now point to other record materials that may have
supported admission under Rule 803(8). However, Appellants did
not make this offer of proof to the District Court and, therefore,
failed to preserve a claim of error on the basis of those materials.
See Burnett, 890 F.2d at 1240 (“[E]xcept in the extraordinary
situation of plain error, no error can be claimed if at the time of the
judge’s ruling the counsel had made no offer of proof that would
have fulfilled the condition[s] [of admissibility].”).
19
party’s agent or employee on a matter within the scope of that
relationship and while it existed.” FED. R. EVID.
801(d)(2)(D). At the time of his statement, Aweis was
serving six life sentences in prison, but was receiving
payments from the PA’s Ministry of Prisoners and was
purportedly continuing to receive military promotions.
“Ordinarily, an agency relationship arises only where the
principal has the right to control the conduct of the agent with
respect to matters entrusted to the agent . . . .” Atrium of
Princeton, LLC v. NLRB, 684 F.3d 1310, 1315 (D.C. Cir.
2012) (internal quotation marks, alterations, and citations
omitted); see also RESTATEMENT (THIRD) OF AGENCY § 1.01
cmt. c (AM. LAW INST. 2006) (“The common law of
agency . . . encompasses the employment relation . . . .”).
Appellants did not offer any evidence that, at the time of
Aweis’s statement, Appellees still “ha[d] the right to control
[his] . . . conduct.” Therefore, the District Court did not abuse
its discretion by concluding that Aweis’s statement was not a
party admission.
Since it was not an abuse of discretion to exclude
Aweis’s statement, it was also not an abuse of discretion to
exclude the passage from The Seventh War, which recounted
Aweis’s statement. See FED. R. EVID. 805 (“[E]ach part of the
combined statements [must] conform[] with an exception to
the rule [against hearsay].”).
C.
The District Court excluded the statement made by
Mustafa Maslamani (“Maslamani”) while he was in the
custody of Israeli police. Maslamani wrote and signed a
statement that read: “I myself, [Halawa,] and [one other
person] were in a coffeehouse in Ramallah and the three of us
were talking . . . and . . . Hallawa [sic] [said that] he
20
perpetrated terrorist attacks,” including the one that killed
Gilmore. J.A. 149.
Appellants argued that this statement was admissible as a
statement against interest. Assuming, without deciding, that
Maslamani was “unavailable,” Appellants must still
demonstrate that a “reasonable person in the declarant’s
position” would think the statement “expose[d] the declarant
to civil or criminal liability.” FED. R. EVID. 804(b)(3); accord
United States v. Wilson, 160 F.3d 732, 739 (D.C. Cir. 1998).
“The rationale of the statement against interest exception is
that a reasonable person will not make a damaging statement
against himself or herself unless it is true.” 5 JOSEPH M.
MCLAUGHLIN, JACK B. WEINSTEIN & MARGARET A. BERGER,
WEINSTEIN’S FEDERAL EVIDENCE § 804.06[4][c] (2d ed.
2013).
Maslamani’s statement did not expose him to liability; he
inculpated Halawa for Gilmore’s murder while exculpating
himself. Appellants argue that Maslamani’s statements
indicated his knowledge of and association with the criminal
activities of Force 17, which exposed him to liability.
However, 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’s note 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.”). Therefore, the
District Court did not abuse its discretion by concluding that
Maslamani’s statement did not “expose [him] to civil or
criminal liability[,]” FED. R. EVID. 804(b)(3), and was not
admissible under Rule 804(b)(3).
21
D.
The District Court excluded the statement of Bashar
Khatib (“Khatib”), Halawa’s colleague, made during the trial
of their supervisor, Mahmoud Damara (“Damara”). While in
the custody of Israeli police, Khatib stated that he was the
driver and Halawa was the shooter in Gilmore’s murder.
During the trial of Damara, Khatib testified about the
custodial statements he made to the police. Later, during the
deposition in this case, Khatib denied having any knowledge
of Gilmore’s murder and refused to explain any purported
inconsistency with his testimony at trial.
Appellants argue that, at trial, Khatib confirmed the
veracity of his custodial statement and, therefore, the trial
testimony is admissible as a prior inconsistent statement
“because Khatib repudiated that sworn trial testimony in his
deposition in this case.” A statement is not hearsay if “[t]he
declarant testifies and is subject to cross-examination about a
prior statement, and the statement . . . is inconsistent with the
declarant’s testimony and was given under penalty of perjury
at a trial, hearing, or other proceeding or in a deposition.”
FED. R. EVID. 801(d)(1)(A).
Appellants try to invoke Rule 801(d)(1)(A) based on a
purported inconsistency between Khatib’s deposition
testimony in this case and his prior trial testimony in
Damara’s Israeli trial. Appellees argue that the statement fails
to meet the requirements of the hearsay exception. We need
not resolve all of the intricacies of this dispute. Even
assuming Rule 801(d)(1)(A) applied to this circumstance, the
Rule’s requirements are not met because the District Court
reasonably concluded that the statements were not
inconsistent. At the Israeli trial, Khatib was asked questions
about a variety of incidents and people, including Halawa,
22
Bashir Nafa, Omar Ka’adan, and Damara. When asked about
Gilmore’s murder, he repeatedly insisted that it had “no
connection to us” and refused to confirm his custodial
statement regarding Halawa’s involvement. Trial Tr. at 7,
J.A. 667. Khatib was then asked: “According to what I
understand from you, everything you have said about
Muhannad Abu Halawa, about Bashir Nafa, Omar Ka’adan,
everything is correct but whatever is related to [Damara] is
incorrect. Correct?” Id. at 8, J.A. 669. Khatib responded:
“Yes.” Id.
Appellants argue that this one-word answer to a
compound question is confirmation, contrary to the rest of
Khatib’s testimony, of his custodial statement implicating
Halawa. The District Court found “it [was] not at all clear
that . . . Khatib understood himself to be affirming the truth of
his prior statements implicating . . . Halawa.” J.A. 866.
Given the trial testimony’s lack of clarity, it was not an abuse
of discretion for the District Court to conclude that Khatib’s
trial and deposition testimony were not inconsistent – he
continuously refused to confirm his custodial statement – and
that, therefore, the trial testimony could not be admitted as a
prior inconsistent statement.3
E.
Finally, the District Court declined to admit the report of
Appellants’ expert, Alon Eviatar (“Eviatar”). Eviatar, a
3
Appellants now also argue that Khatib’s testimony is admissible
as a statement against interest and as former testimony. However,
by not raising those grounds in the lower court proceedings,
Appellants failed to preserve the claim of error. See FED. R. EVID.
103(a). Furthermore, Appellants make no attempt to explain how
this case presents “the extraordinary situation of plain error” that
would excuse their failure. Burnett, 890 F.2d at 1240.
23
former Israel Defense Forces intelligence officer and
Department Head of Palestinian Affairs, examined all of the
evidence described above and opined that it was “more likely
than not that . . . Halawa carried out the October 30, 2000
murder of Mr. Gilmore.”
District courts are assigned “the task of ensuring that an
expert’s testimony both rests on a reliable foundation and is
relevant to the task at hand.” Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 597 (1993). The test of
reliability is “flexible” and “the law grants a district court the
same broad latitude when it decides how to determine
reliability as it enjoys in respect to its ultimate reliability
determination.” Kumho Tire Co. v. Carmichael, 526 U.S.
137, 142 (1999). “[T]he expert must form his own opinions
by ‘applying his extensive experience and a reliable
methodology’ to the inadmissible materials. Otherwise, the
expert is simply ‘repeating hearsay evidence without applying
any expertise whatsoever,’ a practice that allows the
[proponent] to ‘circumvent the rules prohibiting hearsay.’”
United States v. Mejia, 545 F.3d 179, 197 (D.C. Cir. 2008)
(quoting United States v. Dukagjini, 326 F.3d 45, 58-59 (2d
Cir. 2002)).
The District Court found that Eviatar did not apply “a
reliable methodology” to form his opinion about the
inadmissible materials. Eviatar briefly described how, “as a
rule,” the strength of analyses are evaluated by: “(i) the nature
and/or quality of the available information and data; (ii) the
variety and diversity of the sources and/or types of
information and data; and (iii) cumulative experience and
knowledge and professional instincts and intuition.” Expert
Report at 13, J.A. 899. However, he did not explain how this
methodology led to his opinions. It was also unclear how
Eviatar’s approach differed from that of a layperson; “where
24
the jury is just as competent to consider and weigh the
evidence as is an expert witness and just as well qualified to
draw the necessary conclusions therefrom, it is improper to
use opinion evidence for the purpose.” Henkel v. Varner, 138
F.2d 934, 935 (D.C. Cir. 1943). Therefore, in light of the
“broad latitude” to decide how to determine reliability,
Kumho, 526 U.S. at 141-42, it was not an abuse of discretion
for the District Court to deny the admission of Eviatar’s
expert report.
F.
In sum, the District Court did not abuse its discretion in
excluding Appellants’ evidence. The only evidence
connecting Halawa – and, therefore, Appellees – to Gilmore’s
murder is inadmissible hearsay. “[S]heer hearsay . . . counts
for nothing on summary judgment.” Greer, 505 F.3d at 1315.
Accordingly, the District Court did not err in granting
summary judgment in favor of Appellees. See FED. R. CIV. P.
56(a).
VI.
For the foregoing reasons, we affirm the judgment of the
District Court.
So ordered.