The opinion of the court was delivered by: ARLANDER KEYS, Magistrate Judge
MEMORANDUM OPINION AND ORDER
This case arises out of the murder of David Boim, a
seventeen-year-old American citizen who was killed in a Hamas
terrorist attack in the West Bank. David's parents sued two men
who were directly involved in the murder, as well as several
U.S.-based individuals and organizations they claim helped to
support Hamas, for violation of 18 U.S.C. § 2333. The case is
before the Court on motions for summary judgment. A. Factual Background
1. Procedural History of Boim v. OLI, et al.
On May 13, 1996, David Boim, a citizen of both the United
States and Israel who was living in Israel with his parents, both
United States nationals, was shot in the head while waiting for a
bus in the West Bank. David's father, Stanley Boim, testified at
his deposition that, shortly after the attack, "it became public
knowledge as reported in the media that Hamas was behind it."
Transcript of Deposition of Stanley Boim, p. 14. The official
document reporting David's death indicated that David had died
from a "Gunshot Wound; a victim of a terrorist attack as stated
in Israeli death certificate issued by the Ministry of Interior
at Jerusalem on June 3, 1996." See Report of the Death of an
American Citizen Abroad (attached as Exhibit 2 to Plaintiffs'
(HLF) Rule 56.1 Statement). And a 1997 article from the Jerusalem
Post indicates that one of the men wanted for his involvement in
the attack, "Khalil Ibrahim Tawfik Sharif," who went on to kill
himself in a 1997 suicide bomb attack on a Jerusalem pedestrian
mall, was a Hamas activist. See "3rd Ben-Yehuda Bomber
Identified," Jerusalem Post, October 30, 1997 (attached as
Exhibit 11 to Plaintiffs' Rule 56.1 Statement in support of its motion against HLF).*fn1 Another of the
attackers, Amjad Hinawi, confessed to participating in the
attack; he was charged by the Palestinian Authority with
participating in a terrorist act and as an accomplice in the
killing of David Boim. Despite his confession, Mr. Hinawi pled
not guilty, but was tried and convicted on both counts, and
sentenced to ten years of hard labor. See Notes of United
States Foreign Service Officer Abdelnour Zaibeck, a
representative from the Consulate General of the United States,
who attended Mr. Hinawi's court proceedings (attached as Exhibit
6 to Plaintiffs' (HLF) Rule 56.1 Statement); Report of Sentence
of Amjad Mu`hamad Rashid Al`hinawi (attached as Exhibit 10 to
Plaintiffs' (HLF) Rule 56.1 Statement).
On May 12, 2000, David's parents, Stanley and Joyce Boim, sued
Mr. Hinawi and the estate of Khalil Tawfiq Al-Sharif, who had by
that time blown himself up in the suicide bombing. They also sued
Mousa Mohammed Abu Marzook, who allegedly served for many years
as the admitted leader of Hamas' political wing in the United
States, and Mohammed Abdul Hamid Khalil Salah, who allegedly
served as the United States-based leader of Hamas' military
branch. See Complaint, ¶¶ 11-12. The Boims also named as
defendants the Quranic Literacy Institute ("QLI"), the Holy Land Foundation for Relief and Development ("HLF"), the Islamic
Association for Palestine ("IAP"), the American Muslim Society
(d/b/a the Islamic Association for Palestine in Chicago) ("AMS"),
and the American Middle Eastern League for Palestine ("AMELP")
all entities that, according to the complaint, directly or
indirectly raise and launder money for Hamas and finance Hamas'
terrorist activities. See Complaint, ¶¶ 5, 6, 7, 8, 9. Finally,
the Boims sued the United Association for Studies and Research
("UASR"), which allegedly serves as Hamas' political command
center in the United States. Id., ¶ 10.
In each case, the Boims sought to hold the defendants civilly
liable under the Antiterrorism Act of 1990 (the "Antiterrorism
Act"), 18 U.S.C. § 2300 et seq. (West 2004). The Antiterrorism
Act provides, in pertinent part:
Any national of the United States injured in his or
her person, property, or business by reason of an act
of international terrorism, or his or her estate,
survivors or heirs, may sue therefor in any
appropriate district court of the United States and . . .
recover threefold the damages he or she sustains
and the cost of the suit, including attorney's fees.
18 U.S.C. § 2333. The Boims alleged that defendants Hinawi and
Al-Sharif were directly involved in David's murder, and that the
remaining defendants provided material support to Hamas. See
Complaint, ¶ 54. They requested compensatory damages in the
amount of $100,000,000 and punitive damages in the amount of
$100,000,000, plus fees and costs. The Boims further requested that, in accordance with the Antiterrorism Act, their damages be
trebled, and they sought an injunction preventing defendants from
raising any additional money for Hamas. Id., ¶¶ 56, 58.
Defendants QLI, HLF, Salah, IAP, AMS, and AMELP all moved to
dismiss the Boims' complaint, arguing that the Boims' claim
really sought to impose "aiding and abetting" liability, and that
such liability was precluded under § 2333. In an opinion issued
January 10, 2001, the district judge disagreed, and denied the
motions, holding that § 2333 permitted a cause of action based on
the theory that the "defendants aided and abetted international
terrorism." See Boim v. Quranic Literacy Institute,
127 F. Supp. 2d 1002, 1018 (N.D. Ill. 2001). The next month, following a
request by QLI, the district court certified three questions for
(1) does funding, simpliciter, of an international
terrorist organization constitute an act of terrorism
under 18 U.S.C. § 2331?;
(2) does 18 U.S.C. § 2333 incorporate the definitions
of international terrorism found in
18 U.S.C. §§ 2339A and 2339B?; and
(3) does a civil cause of action lie under
18 U.S.C. § 2331 and § 2333 for aiding and abetting
See Boim v. Quarnic Literacy Institute, et al., No. 00 C 2905
(N.D. Ill. Minute Order entered February 22, 2001).
Before the appeal was heard, the parties consented to proceed
before a United States Magistrate Judge, and the case was reassigned to this Court on April 13, 2001. The Seventh Circuit
set the appeal for argument on September 25, 2001, and issued its
decision on June 5, 2002. The court first held that the Boims may
succeed in their claims against the organizational defendants by
proving that they "provided material support to terrorist
organizations." Boim v. Quranic Literacy Institute, et al.,
291 F.3d 1000, 1016 (7th Cir. 2002). On the question of whether
18 U.S.C. § 2333 is broad enough to cover the conduct of persons
who, like the organizational defendants, did not themselves
commit the violent acts complained of, the court held, after
noting that the interpretation of § 2333 was a matter of first
impression, that "aiding and abetting liability is both
appropriate and called for by the language, structure and
legislative history of section 2333," because "[t]he only way to
imperil the flow of money and discourage the financing of
terrorist acts is to impose liability on those who knowingly and
intentionally supply the funds to the persons who commit the
violent acts." Id. at 1021.
The court held that this did not, as the defendants argued,
amount to imposing "guilt by association" in violation of the
First Amendment: "[t]hat Hamas may also engage in legitimate
advocacy or humanitarian efforts is irrelevant for First
Amendment purposes if HLF and QLI knew about Hamas' illegal
operations, and intended to help Hamas accomplish those illegal
goals when they contributed money to the organization." Id. at 1024 (citing NAACP v. Claiborne Hardware Co., 458 U.S. 886, 932
(1982); Scales v. United States, 367 U.S. 203, 229 (1961);
Noto v. United States, 367 U.S. 290, 298 (1961); Healy v.
James, 408 U.S. 169, 186 (1972); National Organization for
Women, Inc. v. Scheidler, 267 F.3d 687, 703 (7th Cir. 2001)).
The court also rejected defendants' argument that liability could
not be imposed under § 2333 if, as contended, the defendants
provided support to Hamas with the sole intent of contributing to
the organization's humanitarian and charitable programs, rather
than its military or terrorist factions: "[t]errorist
organizations use funds for illegal activities regardless of the
intent of the donor, and Congress thus was compelled to attach
liability to all donations to foreign terrorist organizations."
Id. at 1027.
In short, the Seventh Circuit answered the certified questions
funding, simpliciter, of a foreign terrorist
organization is not sufficient to constitute an act
of terrorism under 18 U.S.C. § 2331. However, funding
that meets the definition of aiding and abetting an
act of terrorism does create liability under sections
2331 and 2333. Conduct that would give rise to
criminal liability under section 2339B is conduct
that "involves" violent acts or acts dangerous to
human life, and therefore may meet the definition of
international terrorism as that term is used in
section 2333. Finally, . . . civil liability for
funding a foreign terrorist organization does not
offend the First Amendment so long as the plaintiffs
are able to prove that the defendants knew about the
organization's illegal activity, desired to help that
activity succeed and engaged in some act of helping.
Id. at 1028. Following the Seventh Circuit's ruling, the Boims moved for
default judgment against Mr. Hinawi and against UASR. This Court
granted both motions; the former for failing to answer the
Complaint despite proper service, and the latter for failing to
comply with discovery. The Boims also moved to sever the case
against Mr. Hinawi and to dismiss the case as to Mr. Marzook and
the estate of Al-Sharif because of an inability to effectuate
service on them. Again, the Court granted both motions.
Additionally, the Court granted the Boims' motion for the entry
of a default judgment against AMELP.
Thereafter, the Boims filed a First Amended Complaint, naming
principally the same defendants, but adding allegations about
each. With respect to HLF, the Boims added that, in December
2001, HLF was named as a "Specially Designated Terrorist" by the
President of the United States, that HLF's assets had been seized
by the Federal Bureau of Investigation, and that the Court of
Appeals for the District of Columbia Circuit had ruled, in Holy
Land Foundation v. Ashcroft, 333 F.3d 156 (D.C. Cir. 2003), that
HLF funded Hamas' terrorist activities. See First Amended
Complaint, ¶ 6.
With respect to IAP, the Boims added an allegation about the
structure and organization of the various entities using the
"IAP" name; specifically, that "[t]here has been continuously
since the early 1980's an entity or group of persons and entities operating under the name `Islamic Association for Palestine'
(collectively, `IAP National'). IAP National is an umbrella
organization that encompasses the various organizations
throughout the country which call themselves `IAP,' including
defendants AMELP, AMS, and IAP Texas." Id., ¶ 7. The Boims had
simply referred to "IAP Texas" as "IAP" in their original
The Amended Complaint also references meetings that took place
in 1993 and 1994 between named defendants and Hamas members and
activists, and it alleges that the defendants worked together and
with Mr. Marzook as part of an ongoing conspiracy to promote
Hamas and to raise money in the United States for Hamas'
terrorist operations. Id., ¶¶ 32-33, 36. The Amended Complaint
did not add any new causes of action, however; the Boims still
seek redress for a single cause of action violation of
18 U.S.C. § 2333.
The remaining, non-defaulted defendants Mr. Salah, QLI, HLF,
IAP and AMS all answered the First Amended Complaint (IAP and
AMS filed a joint Answer), and the case proceeded through
discovery. It is now before the Court on motions and
cross-motions for summary judgment.
2. Parallel and Related Proceedings
a. Proceedings relating to Terrorist Designations
On January 23, 1995, President Clinton signed Executive Order 12947, prohibiting transactions with terrorists who
threaten to disrupt the Middle East peace process. See
Executive Order No. 12947, 60 Fed. Reg. 5079 (Jan. 23, 1995).
Annexed to the Order was a relatively short list (with just
twelve entries) of such terrorist organizations (thereafter
referred to as "Specially Designated Terrorists" or "SDTs").
Id., 60 Fed. Reg. at 5081.*fn2 Hamas (also known as the
Islamic Resistance Movement) was one of the organizations on the
list. Id. Executive Order 12947, inter alia, prohibited
donations to designated organizations, directed all agencies of
the United States Government to take all appropriate measures
within their authority to carry out the Order's provisions,
directed the Federal Bureau of Investigation to handle the
investigation of possible violations of the Order, and directed
the FBI to timely notify the Department of the Treasury of any
action taken on such investigations.
To that end, on November 5, 2001, Dale L. Watson, the Assistant Director of the Federal Bureau of Investigation's
Counterterrorism Division, wrote an "action memorandum" to R.
Richard Newcomb, Director of the United States Treasury
Department's Office of Foreign Assets Control ("OFAC"),
concerning HLF. Mr. Watson's memo described some of the history
of Hamas, one of the frontrunner SDTs; it also described the
history of HLF, HLF's organizational structure, and the results
of various surveillance projects capturing and documenting the
relationship between HLF and Hamas. Mr. Watson summed up his memo
by recommending that OFAC add HLF (which he referred to as HLFRD)
to the list of SDTs:
FBI investigations of HAMAS activities in the United
States have revealed that the HLFRD is the primary
fund-raising entity for HAMAS and that a significant
portion of the funds raised by the HLFRD are clearly
being used by the HAMAS organization. The information
provided in this document confirms that the HLFRD is
acting for or on behalf of HAMAS. Further, senior
members of HLFRD support HAMAS ideology and
activities. These HAMAS activities interfere with the
Middle East peace process and pose a threat to the
national security, foreign policy, or economy of the
United States. As such, HLFRD should be considered by
OFAC for SDT designation as a HAMAS entity, subject
to the prohibitions of the [International Emergency
Economic Powers Act].
Watson Memorandum, p. 49 (Bates No. 0108) (attached to the
Declaration of Samuel A. Simon, Jr., at Exhibit 13 of Plaintiffs'
(HLF) Rule 56.1 Statement).
On December 4, 2001, Director Newcomb issued a "Blocking
Notice" to HLF, advising that OFAC had blocked all of HLF's real and personal property, including offices, furnishings, equipment,
and vehicles, as well as all funds and accounts in which HLF has
any interest. See Exhibit 14 to Plaintiffs' (HLF) Rule 56.1
Statement. On March 8, 2002, HLF sued John Ashcroft, the United
States Department of Justice, Paul O'Neill, the United States
Department of the Treasury, Colin Powell and the United States
Department of State in the United States District Court in
Washington D.C., seeking a declaration that the defendants'
designation of HLF as an SDT and the defendants' seizure of HLF's
assets were unlawful; HLF alleged violations of the United States
Constitution, the Religious Freedom Restoration Act ("RFRA"), the
International Emergency Economic Powers Act ("IEEPA"), and the
Administrative Procedures Act ("APA").
HLF lost its challenge of the SDT designation and blocking
order, both in the district court, see Holy Land Foundation v.
Ashcroft, 219 F. Supp. 2d 57 (D.D.C. 2002), and on appeal to the
United States Court of Appeals for the D.C. Circuit, see Holy
Land Foundation v. Ashcroft, 333 F.3d 156 (D.C. Cir. 2003)
(hereinafter "Ashcroft"). Of particular import here, the D.C.
Circuit determined that "[t]he ample record evidence
(particularly taking into account the classified information
presented to the court in camera) establishing HLF's role in
the funding of Hamas and of its terrorist activities is
incontrovertible." 333 F.3d at 165. The court noted that HLF "had every opportunity to come forward with some showing that
that evidence is false or even that its ties to Hamas had been
severed," and it failed to do so, even when given additional time
to respond to the evidence weighing in favor of the SDT
designation. Id. at 165-66. Along the same lines, the court
noted that "HLF had every opportunity and incentive to produce
the evidence sufficient to rebut the ample evidence supporting
the necessary conclusion that it was a funder of Hamas but could
not do so." Id. at 166. And, in addressing HLF's RFRA claim,
the court held that "[t]here is no free exercise right to fund
terrorists. The record clearly supports a conclusion that HLF
did." Id. at 167. HLF filed a petition for certiorari to the
United States Supreme Court; that petition was denied. See Holy
Land Foundation for Relief & Development v. Ashcroft,
___ U.S. ___, 124 S.Ct. 1506 (Mar. 1, 2004).
On July 26, 2004, the United States indicted HLF and seven of
its principals (Shukri Abu-Baker, Mohammad El-Mezain, Ghassan
Elashi, Haitham Maghawri, Akram Mishal, Mufid Abdulqader, and
Abdulraham Odeh) for, among other things, conspiring to provide
and providing material support to a foreign terrorist
organization namely, Hamas in violation of
18 U.S.C. § 2339B(a)(1). The case is pending in the United States District
Court in Dallas, Texas. On August 19, 2004, the United States indicted Mr. Salah, as well as Mousa Mohammed Abu Marzook and
Abdelhaleem Hasan Abdelraziq Ashqar, for, among other things,
knowingly providing and attempting to provide material support
and resources to a foreign terrorist organization namely Hamas
in violation of 18 U.S.C. § 2339B. That case is pending in this
Almost immediately after the indictments were handed down, HLF
and Mr. Salah filed separate motions to stay this action pending
resolution of the criminal matters. On September 9, 2004, after
hearing from the parties both in briefs and in extensive oral
arguments, the Court denied those motions. Mr. Salah moved for
reconsideration, and, after hearing additional oral argument from
the parties, the Court denied the motion for reconsideration as
The Boims have filed separate motions for partial summary
judgment on the issue of liability against Mr. Salah and HLF,
both of whom filed their own cross-motions for summary judgment.
Additionally, IAP and AMS filed a joint motion for summary
judgment against the Boims, who filed a cross-motion for summary
judgment against those entities. And QLI moved for summary
judgment in its favor, without prompting a cross-motion from the
Boims. Thus, in all, there are seven summary judgment motions
before the Court; there are also three motions to strike, which the Court will consider in connection with the relevant motions
for summary judgment.
Summary judgment is properly entered when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." Fed.R. Civ. P.
56(c). The Supreme Court has instructed district courts to act
"with caution" in granting summary judgment; "where there is
reason to believe that the better course would be to proceed to a
full trial," the motion should be denied. Anderson v. Liberty
Lobby, 477 U.S. 242, 255 (1986). At this stage of the
proceedings, the Court makes no credibility determinations and
weighs no evidence; instead, the Court accepts the non-movant's
evidence and draws all justifiable inferences in its favor. Id.
The Boims have sued the defendants for violation of
18 U.S.C. § 2333, which provides, in relevant part, that "[a]ny national of
the United States injured in his or her person . . . by reason of
an act of international terrorism, or his or her estate,
survivors, or heirs, may sue therefor . . . and shall recover
threefold the damages he or she sustains. . . ."
18 U.S.C. § 2333(a). The statute "clearly is meant to reach beyond those
persons who themselves commit the violate act that directly
causes the injury"; indeed, the statute is specifically drafted "to extend liability to all points along the causal chain of
terrorism." Boim, 291 F.3d at 1011, 1020. Conduct that would
give rise to criminal liability under § 2339B(a), would give rise
to civil liability under § 2333. Id. at 1028. And 2339B
provides that "[w]hoever, within the United States or subject to
the jurisdiction of the United States, knowingly provides
material support or resources to a foreign terrorist
organization, or attempts or conspires to do so, shall be fined
under this title or imprisoned not more than 10 years, or both."
18 U.S.C. § 2339B(a)(1).
The Boims have alleged that the defendants conspired to
provide, and provided, material support to Hamas. "Material
support" would include, among other things, money and financial
services, lodging, training, safehouses, and false documentation
or identification. 18 U.S.C. §§ 2339A(b), 2339B(g). To prove that
the defendants provided material support to Hamas in violation of
§ 2333, the Boims would have to show that they knew about Hamas'
illegal activities, that they desired to help those activities
succeed, and that they engaged in some act of helping. Boim,
291 F.3d at 1023. To prove that the defendants conspired to
provide material support to Hamas in violation of § 2333, which
imports general tort law principles, see Boim,
291 F.3d at 1010, 1020, the Boims would have to show that the defendants
"acted in concert to commit an unlawful act . . . the principal
element of which [was] an agreement between the parties `to inflict a wrong
against or injury upon another,' and `an overt act that results
in damages.'" Richardson v. City of Indianapolis, 658 F.2d 494,
500 (7th Cir. 1981) (quoting Hampton v. Hanrahan, 600 F.2d 600,
620-21 (7th Cir. 1979)). The Boims need not show that the
defendants knew about the attack that killed David Boim, or that
they committed any specific acts in furtherance of that attack;
rather, the Boims need only show that the defendants were
involved in an agreement to accomplish an unlawful act and that
the attack that killed David Boim was a reasonably foreseeable
consequence of the conspiracy. See, e.g., Pinkerton v. United
States, 328 U.S. 640, 643 (1946). Nor would the Boims be
required to provide direct evidence of an agreement between the
parties; "[c]ircumstantial evidence may provide adequate proof of
conspiracy." Hoffman-LaRoche, Inc. v. Greenberg, 447 F.2d 872,
875 (7th Cir. 1971).
1. Motions Filed By and Against The Holy Land Foundation
The Boims seek summary judgment against HLF on the issue of
liability only. In their motion, the Boims argue that the
undisputed evidence demonstrates all of the necessary elements of
their claim against this defendant namely, that David Boim was
a United States citizen, that he was killed in a Hamas attack,
and that Holy Land Foundation supported Hamas' terrorist
activities. To support the last point, the Boims rely substantially on the rulings in Holy Land Foundation for Relief
& Development v. Ashcroft, supra. The Boims argue that, based
upon those rulings, HLF is collaterally estopped from denying
that it knowingly provided material support to Hamas. HLF
countered that the evidence is, at best, inconclusive as to all
of these points; in particular, on the last point, HLF argues
that collateral estoppel does not apply under the circumstances
HLF also filed a cross-motion for summary judgment, arguing
that, given the lack of evidence to support the Boims' claim, HLF
is entitled to judgment as a matter of law. Specifically, HLF
argues that the Boims' claim fails because they have offered no
admissible evidence to establish that HLF has ever knowingly
provided material support to Hamas, or that Hamas is responsible
for David Boim's murder.
By way of background, HLF, originally known as the Occupied
Land Fund, was incorporated as a tax-exempt organization in
California on January 11, 1989. See Articles of Incorporation
of the Occupied Land Fund (attached as Exhibit J to Plaintiffs'
(HLF) Rule 56.1 Statement). On September 16, 1991, it changed its
corporate name to The Holy Land Foundation for Relief and
Development and moved to Texas. See Certificate of Amendment of
Articles of Incorporation of the Occupied Land Fund (attached as
Exhibit J to Plaintiffs' (HLF) Rule 56.1 Statement). An HLF
brochure submitted with the Boims' motion for summary judgment indicates that HLF was "established in 1987 and had since grown
to become prominent among relief organizations that serve the
humanitarian needs and promote the well-being of the Palestinian
people in the West Bank, Gaza Strip, and beyond." See Exhibit V
to Plaintiffs' (HLF) Rule 56.1 Statement. The D.C. Circuit noted
that HLF "describes itself as `the largest Muslim charity in the
United States.'" Ashcroft, 333 F.3d at 160.
With respect to HLF's ties to Hamas, the record evidence
(deposition testimony as well as documentary evidence from the
administrative record in the Ashcroft case) shows that, in the
years after the United States designated Hamas as an SDT, HLF
provided significant funding (hundreds of thousands of dollars)
to the following organizations: the Islamic Charity Association
(a.k.a. Islamic Charitable Society in Hebron), Ramallah Zakat
Committee, Jenin Zakat Committee, Nablus Zakat Committee,
Tolkarem Zakat Committee, Orphan Care Association in Bethlehem,
Qalqiliyah Zakat Committee, Hebron Zakat Committee (a.k.a. Hebron
Tithing and Alms Committee), Dar El Salam Hospital, Islamic Aid
Committee (a.k.a. Islamic Relief Agency), Sanabil Association for
Relief and Development, and the Human Appeal
International-Jordan. See Transcript of Deposition of Shukri
Abu-Baker, pp. 170-76; see also AR 1209-15 (attached as Exhibit
4 to Plaintiffs' (IAP/AMS) Rule 56.1 Statement). The evidence
further shows that all of these organizations are either known
fronts for Hamas, known supporters of Hamas, or entities whose funding is known to
benefit the Hamas agenda. See Watson Memorandum, pp. 0087-88,
0091-0105; see also, e.g., AR 0856-63, 1252-61, 1271-78.
The record also contains a report of a statement from Mohamed
Anati, the Executive Director of the Holy Land Foundation,
Jerusalem, the sole agency of HLF in the West Bank and Israel (at
least as of 1994). See Accord between HLF and HLF-Jerusalem
(attached as Exhibit 4 to Plaintiffs' (IAP/AMS) Rule 56.1
Statement, pp. 0759, 0764, 0810). In the statement, Mr. Anati
admits being a Hamas activist, and admits that some of HLF's
money was channeled to Hamas. See AR 1263-1278. The record also
contains documents that appear to show (there are no official
documents) that, in 1997, the Government of Israel's Minister of
Defense declared HLF to be "disallowed" for channeling money to
Hamas. See AR 1335-40.
The Boims also rely upon a videotape from a 1989 IAP conference
that shows, among other things, a veiled speaker who is
identified as a Hamas terrorist and who specifically thanks the
Occupied Land Fund (the entity now known as HLF) for its support.
See Exhibit T to Plaintiffs' (HLF) Rule 56.1 Statement;
Declaration of Reuven Paz, Exhibit A (attached as Exhibit M/A to
Plaintiffs' (HLF) Rule 56.1 Statement). Mr. Abu-Baker admitted
that he attended that conference. See Responses to Requests for
Admission, ¶ 4 (attached as Exhibit U to Plaintiffs' (HLF) Rule 56.1 Statement).
The record also includes brochures and other literature
designed, in whole or in part, to promote Hamas' agenda. These
items routinely included a solicitation to send funds for the
cause to HLF (or the Occupied Land Fund, depending on the
publication date). HLF's representative, however, denies that HLF
took any affirmative steps to have its name and address included
in these documents. See Group Exhibit P to Plaintiffs' (HLF)
Rule 56.1 Statement; Transcript of Deposition of Shukri
Abu-Baker, pp. 105-115.
The record also contains deposition testimony from Mr.
Abu-Baker, who has served as HLF's President and Chief Executive
Officer since 1989. See Answers to Interrogatories, Nos. 2, 5
(attached as Exhibit 21 to Plaintiffs' (HLF) Rule 56.1
Statement); Deposition of Shukri Abu-Baker, p. 10. Mr. Abu-Baker
initially testified as HLF's Rule 30(b) (6) designee; in that
capacity, he testified that HLF frequently received donations
from people who wanted their money to go to the family or
children of a "shaheed" or "martyr," and that HLF made it a
practice to try to accommodate the requests of those donors.
See Abu-Baker Deposition, p. 168. According to the Boims, a
"shaheed" or "martyr" is someone who dies while serving Hamas'
agenda, whether in a suicide bombing or some other terrorist
attack, or at the hands of an Israeli soldier. See, e.g., Exhibit E to Plaintiffs' (HLF) Rule 56.1 Statement (translation
of The Khaled Mishaal Interview, describing terrorist acts as
"martyrdom operations"); Exhibit E to Plaintiffs' Reply
Memorandum, ¶¶ 5d, 5e (and attached exhibits E and F) (Reuven
Paz' translations of Palestinian Authority and Hamas website
publications characterizing Mr. Al-Sharif, one of David Boim's
murderers, who subsequently died in a suicide bombing, as a
"martyr"); Mr. Abu-Baker testified that a broader meaning may be
ascribed to these terms, such that they can refer to anyone who
dies as a result of the Israeli occupation and the Palestinian
uprising. Deposition of Shukri Abu-Baker, pp. 162-63, 167-68. In
either case, it is clear that HLF targeted the families of
martyrs to receive its money.
In his capacity as a 30(b) (6) witness, Mr. Abu-Baker also
testified that, in 1992, HLF received a $210,000 contribution
from Mr. Marzook. See Deposition of Shukri Abu-Baker, pp.
75-76, 79. Mr. Abu-Baker testified that he knows Mr. Marzook, and
that Mr. Marzook is married to the first cousin of Ghassan
Elashi, who served first as HLF's Treasurer and Secretary, and
later as the Chairman of HLF's Board of Directors, see Answers
to Interrogatories, No. 2 (attached as Exhibit 21 to Plaintiffs'
(HLF) Rule 56.1 Statement); HLF's Responses to Requests for
Admission, ¶ 6 (attached as Exhibit C to Plaintiffs' Reply
Memorandum). Mr. Abu-Baker testified that, other than the $210,000 contribution, Mr. Marzook had no relationship or
involvement with HLF. See Transcript of Deposition of Shukri
Abu-Baker, p. 75.
According to the Boims and Mr. Watson Mr. Marzook served
for many years as the head of Hamas' political bureau; he was
designated as an SDT on August 25, 1995. See Complaint, ¶¶ 12,
34; Watson Memorandum, pp. 0073-74 (attached as Exhibit B to
Plaintiffs' (HLF) Rule 56.1 Statement). The Watson Memorandum
details Mr. Marzook's $210,000 contribution, and relies upon it
to link HLF to Hamas. Watson Memorandum, pp. 0074. And the
administrative record upon which Mr. Watson relied contains
copies of checks written by Mr. Marzook and made payable to HLF.
Id., pp. 0684-87.
Some time after Mr. Abu-Baker's 30(b) (6) deposition, the Boims
indicated that they wanted to depose Mr. Abu-Baker in his
individual capacity as a fact witness. Counsel for HLF indicated
that Mr. Abu-Baker would, if deposed, invoke his Fifth Amendment
right and refuse to answer substantive questions. See August
10, 2004 Letter from John Boyd to Richard Hoffman (attached as
Exhibit H to Plaintiffs' Reply). And, in fact, the Boims' counsel
deposed Mr. Abu-Baker on September 28, 2004, and he did, as
expected, refuse to testify pursuant to the Fifth Amendment.
See Transcript of Oral and Videotaped Deposition of Shukri
Abu-Baker, pp. 6-127 (attached as Exhibit A to Plaintiffs'
Supplement to the HLF Summary Judgment Record Based on the Testimony of
Shukri Abu-Baker). Similarly, at his deposition, Mr. Elashi
invoked his Fifth Amendment right, refusing to answer any
substantive question posed on the ground that it might tend to
incriminate him. See Transcript of Deposition of Ghassan
Elashi, pp. 6-91. Because Mr. Abu-Baker and Mr. Elashi chose to
remain silent at their depositions, the Court is entitled to draw
a negative inference that the answers they would have given, had
they answered the questions posed and answered them truthfully,
would have tended to subject them to criminal liability. See,
e.g., In re High Fructose Corn Syrup Antitrust Litigation,
295 F.3d 651, 663 (7th Cir. 2002); Baxter v. Palmigiano,
425 U.S. 308, 318 (1976). This is just one more bit of admissible evidence
against HLF on the question of whether it knew about Hamas'
illegal activities and desired to help those activities succeed.
In contrast to this evidence, the record also contains a July
27, 2004 declaration from HLF's attorney, John Boyd. See
Exhibit A to HLF's Rule 56.1 Statement). Attached to that
declaration is another declaration from Mr. Boyd, this one signed
on June 15, 2002 and prepared in response to the motion for
summary judgment filed by the government in the Ashcroft case.
See Exhibit A/1 to HLF's Rule 56.1 Statement. And attached, in
turn, to Mr. Boyd's 2002 declaration are declarations from Shukri Abu-Baker, then HLF's CEO, Dalell D. Mohmed, an HLF donor and an
Emergency Relief Coordinator for HLF, and Mohammed Abumoharram,
the manager of HLF's Gaza office. See Exhibits A/2, A/3, and
A/4 to HLF's Rule 56.1 Statement. All three declarations testify
to a vast amount of admirable, charitable work done by HLF all
totally unrelated to Hamas and all three declarants adamantly
disavow any ties to Hamas, and any condonation of Hamas'
activities. See Exhibit A/2, §§ 3, 7, 30, 31; Exhibit A/3, §§
2, 5-30, 32, 35-51; Exhibit A/4, §§ 5-7, 12. Ordinarily, these
declarations might be enough to create a genuine issue of fact as
to the connection between Hamas and HLF. See Anderson,
477 U.S. at 255. But see Logan v. Caterpillar, Inc., 246 F.3d 912, 923
(7th Cir. 2001) (self-serving affidavits, if not supported in the
record, will not preclude summary judgment). Thus, resolution of
the Boims' summary judgment motion turns, in no small part, on
whether the Court is bound, under the doctrine of collateral
estoppel or issue preclusion, by the Ashcroft court's ruling that
HLF provided material support to Hamas. See Holy Land Foundation
for Relief & Development v. Ashcroft, supra.
Before turning to the collateral estoppel question, the Court
considers HLF's argument that the Boims have failed to provide
evidence that David Boim was actually killed by Hamas. As HLF
correctly points out, if the Boims have failed to meet this
burden, the Boims' case would fail, without the Court even having to reach the question of whether HLF funded Hamas.
HLF's assertions notwithstanding, the record contains ample
evidence showing that Hamas did, in fact, take responsibility for
the attack that killed David Boim. The evidence in the record
shows that David was murdered in a terrorist attack, not in some
random drive-by shooting. Mr. Hinawi, one of the attackers, was
charged with and convicted of committing a terrorist act, as well
as for his participation in the murder. See Abdelnour Zaibeck's
Notes of Proceedings for Amjad Hinawi (February 10, 12 and 14,
1998) (attached as Exhibit 6 to Plaintiffs' (HLF) Rule 56.1
Statement); Report of Sentence of Amjad Hinawi (February 14,
1998) (attached as Exhibit 10 to Plaintiffs' (HLF) Rule 56.1
Statement). A September 22, 1997 press bulletin issued by the
Government of Israel's Press Office states that Mr. Hinawi is a
member of Hamas, and that the Government of Israel sought Mr.
Hinawi's extradition because of his involvement with the Hamas
attack that killed David. See Press Bulletin of September 22,
1997, p. 2 (attached as Exhibit 9 to Plaintiffs' (HLF) Rule 56.1
Statement). Al-Sharif, who, with Mr. Hinawi, carried out the
attack on David Boim and his friends, is also reported in the
record as being a Hamas activist. See "3rd Ben-Yehuda
Bomber Identified," the Jerusalem Post (October 30, 1997)
(attached as Exhibit 11 to Plaintiffs' (HLF) Rule 56.1
Statement). Mr. Boim testified that, shortly after David's
murder, the media reported that Hamas was taking credit for the attack, and it became public
knowledge that Hamas was behind the attack. Transcript of
Deposition of Stanley Boim, p. 14 (attached as Exhibit 3 to
Plaintiffs' (HLF) Rule 56.1 Statement).
Added to this evidence is the fact that a default judgment has
been entered against Mr. Hinawi, which means, as a practical
matter, that the Court accepts as true the well-pled allegations
in the Complaint about him that is, that he is a Hamas
terrorist and one of two Hamas agents who carried out the attack
on David Boim. See Complaint, ¶¶ 13, 25-28; Dundee Cement Co.
v. Howard Pipe & Concrete Products, Inc., 722 F.2d 1319, 1323
(7th Cir. 1983) ("As a general rule, a `default judgment
establishe[s], as a matter of law, that defendants [are] liable
to plaintiff as to each cause of action alleged in the
complaint.' . . . Upon default, the well-pleaded allegations of a
complaint relating to liability are taken as true.") (quoting
Breuer Electric Mfg. Co. v. Toronado Systems of America, Inc.,
687 F.2d 182, 186 (7th Cir. 1982).
In short, all of the evidence in the record on this issue
points to Hamas as the entity responsible for David's murder.
Even now, HLF has offered no evidence that anyone other than
Hamas was responsible for the attack. Accordingly, the Court
finds that David Boim was murdered by Hamas activists, in a
Hamas-sponsored attack, and that no reasonable jury could find otherwise.
The Court turns now to the collateral estoppel issue and
considers what effect, if any, the D.C. Circuit's rulings in the
Ashcroft case should have on this case. The Boims argue that
HLF is collaterally estopped from relitigating the issue of
whether it knowingly funded Hamas and its terrorist activities.
The Boims assert that HLF has already raised this issue and
lost in the Ashcroft case.
"Under the judicially-developed doctrine of collateral
estoppel, once a court has decided an issue of fact or law
necessary to its judgment, that decision is conclusive in a
subsequent suit based on a different cause of action involving a
party to the prior litigation." United States v. Mendoza,
464 U.S. 154, 158 (1984) (citing Montana v. United States,
440 U.S. 147, 153 (1979)). "Collateral estoppel, like the related doctrine
of res judicata, serves to `relieve parties of the cost and
vexation of multiple lawsuits, conserve judicial resources, and,
by preventing inconsistent decisions, encourage reliance on
adjudication.'" Id. (quoting Allen v. McCurry, 449 U.S. 90,
94 (1980)). At various turns, the Supreme Court has broadened the
scope of the collateral estoppel doctrine, first by abandoning
the mutuality of parties requirement, and then by approving the
"offensive" use of collateral estoppel that is, the use of the
doctrine by a plaintiff seeking to foreclose a defendant from relitigating an issue the defendant previously lost ...