292 F. Supp. 3d 188
D.C. Cir.2017Background
- In 2002 a suicide bombing at a Karnei Shomron pizzeria killed two U.S. nationals and injured others; plaintiffs (U.S. victims and representatives) sued the Palestinian Authority (PA) and PLO under the Anti‑Terrorism Act and related tort claims alleging the PA proximately caused the attack by paying Ra'ed Nazal a salary that enabled him to plan/recruit for the bombing.
- The court granted summary judgment for defendants on June 20, 2017, finding plaintiffs lacked admissible evidence that Nazal planned the bombing and thus could not prove proximate causation.
- After judgment, plaintiffs located a December 17, 2016 Facebook livestream interview of Allam Kaabi (PFLP Central Committee member) in which Kaabi said the Karnei Shomron attack “was executed by comrade Raed Nazal.” Plaintiffs moved under Rule 59(e) to alter/amend judgment, proffering Kaabi’s statement as newly discovered evidence.
- Defendants opposed, disputing the timeliness/newly‑discovered nature of the evidence and arguing the Kaabi statement is inadmissible hearsay not qualifying under the statements‑against‑interest exception (Fed. R. Evid. 804(b)(3)).
- The court considered (1) whether the evidence was newly discovered despite plaintiffs’ delay in producing the interview, and (2) whether Kaabi’s out‑of‑court statement is admissible under Rule 804(b)(3). The court found plaintiffs gave no satisfactory explanation for late discovery and determined the Kaabi statement is not admissible.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether post‑judgment Kaabi interview is newly discovered for Rule 59(e) | Interview surfaced May 22, 2017; counsel was translating and assessing admissibility prior to opinion | Plaintiffs could have found/produced the December 2016 interview earlier; Rule 59(e) disallows evidence that could have been raised before judgment | Court skeptical of plaintiffs’ diligence; plaintiffs offered no adequate explanation for delay, so Rule 59(e) relief is disfavored |
| Whether Kaabi’s identification of Nazal is admissible hearsay under Fed. R. Evid. 804(b)(3) (statement against interest) | Kaabi’s narrative shows inside knowledge and conspiracy membership; identifying Nazal is against Kaabi’s interest and thus reliable | Kaabi’s statement is non‑self‑inculpatory or may have been made to claim credit; terrorists have perverse incentives to boast, undermining reliability | Court held statement not admissible: it does not directly inculpate Kaabi and, even if it did, the context (boasting/credit, lack of risk of U.S. prosecution) undermines the trustworthiness required by Rule 804(b)(3) |
| Whether Kaabi was “unavailable” under Rule 804 for purposes of admitting his statement | Plaintiffs argued Kaabi lives in Gaza (outside U.S. subpoena power) and likely would assert privilege | Defendants argued plaintiffs failed to show reasonable efforts to secure testimony or to prove unavailability/fifth‑amendment assertion | Court did not definitively decide availability but treated the availability dispute as unresolved and proceeded to exclude the statement on other grounds |
| Whether admission of Kaabi’s statement would change summary judgment outcome on proximate causation | Plaintiffs: Kaabi ties Nazal to the attack, curing prior evidentiary gap | Defendants: Statement is inadmissible, so summary judgment should stand | Court denied motion; exclusion of Kaabi statement leaves prior finding—that plaintiffs lacked admissible proof Nazal planned the bombing—intact |
Key Cases Cited
- Exxon Shipping Co. v. Baker, 554 U.S. 471 (limits on using new evidence after judgment)
- Mohammadi v. Islamic Republic of Iran, 782 F.3d 9 (D.C. Cir. 2015) (Rule 59(e) reconsideration is extraordinary; grounds for relief)
- Patton Boggs LLP v. Chevron Corp., 683 F.3d 397 (D.C. Cir. 2012) (standards for reconsideration)
- Gilmore v. Palestinian Interim Self‑Gov't Auth., 843 F.3d 958 (D.C. Cir. 2016) (statements‑against‑interest analysis in terrorism cases)
- Williamson v. United States, 512 U.S. 594 (limits on admitting collateral statements under Rule 804(b)(3))
- Slatten v. United States, 865 F.3d 767 (D.C. Cir. 2017) (reliability concerns for immunized/co‑conspirator admissions)
- Niedermeier v. Office of Baucus, 153 F. Supp. 2d 23 (D.D.C. 2001) (newly discovered evidence standard for Rule 59(e))
- Gilmore v. Palestinian Interim Self‑Gov't Auth., 53 F. Supp. 3d 191 (D.D.C. 2014) (district court discussion that terrorist boasts undercut statements‑against‑interest reliability)
- Strauss v. Credit Lyonnais, S.A., 925 F. Supp. 2d 414 (E.D.N.Y. 2013) (credit‑taking by terrorists undermines reliability for 804(b)(3) admission)