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Acosta v. Islamic Republic of Iran

August 26, 2008

CARLOS ACOSTA, ET AL., PLAINTIFFS,
v.
THE ISLAMIC REPUBLIC OF IRAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This action arises from the assassination of Rabbi Meir Kahane and the shooting of Irving Franklin and U.S. Postal Police Officer Carlos Acosta on November 5, 1990, in New York. Plaintiffs are Carlos Acosta and his wife, Maria Acosta, Irving Franklin (on his own behalf and as administrator of his wife Irma Franklin's estate), and the surviving spouse, mother, children, and sibling of Rabbi Meir Kahane. Rabbi Meir Kahane was killed and Irving Franklin and Carlos Acosta were seriously wounded by El Sayyid Nosair. Nosair was and is a member of AlGam'aa Islamiyah (or, the "Islamic Group"), a terrorist organization headed by Sheik Omar Ahmad Ali Abdel Rahman ("Sheik Abdel Rahman"). Plaintiffs allege that the Islamic Republic of Iran ("Iran"), and the Iranian Ministry of Information and Security ("MOIS"), are liable for damages from the shooting because they provided material support and assistance to the Islamic Group. As such, defendants are subject to suit under the recently revised terrorist exception to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1605A.*fn1

This matter is a re-filing of the same claims that previously were the subject matter of Acosta v. Islamic Republic of Iran, Civil A. No. 01-2352 (D.D.C.) (Lamberth, J.). While that case was pending, this Court completed an evidentiary hearing on March 31, 2003, and April 1, 2003. At the hearing, this Court heard live testimony and videotaped deposition testimony and admitted into evidence various exhibits. By Order dated April 21, 2006, that case was dismissed without prejudice. On April 24, 2006, plaintiffs filed the Complaint in the instant action, which consists of claims and parties that are identical to those in the original action. On November 8, 2007, this Court permitted plaintiffs to proceed in the instant action by submitting to the Court exhibits and transcripts or videotapes of all prior testimony introduced during the evidentiary hearing held in Acosta, Civ. A. No. 01-2352.

On April 22, 2007, defendants were served with the Complaint and other required documents pursuant to 28 U.S.C. § 1608(a)(4). Service is reflected in a June 18, 2007 letter from the United States Department of State to the Clerk of this Court. (See Docket Entry # 13.) Plaintiff thereafter sought entry of default on October 12, 2007, based upon defendants' failure to respond or enter an appearance. Default was entered by the Clerk of this Court against defendants on October 15, 2007.

Based on all of the evidence presented at the evidentiary hearing, the Court makes the following findings of fact and conclusions of law and will, consistent with them, enter default judgment in favor of plaintiff and against defendants Iran and MOIS.

FINDINGS OF FACT

I. Generally

(1) Plaintiff Libby Kahane, a U.S. citizen residing in Israel, is the wife of decedent Rabbi Meir Kahane, and brings this action in her own right and as Administratrix of the Estate of Rabbi Meir Kahane. (See Hr'g Tr. 71--72, March 31, 2003.)

(2) The decedent, Rabbi Meir Kahane was a non-citizen residing in Israel at the time of the shooting.

(3) Rabbi Norman Kahane, a U.S. citizen residing in Israel, is the brother of decedent Rabbi Meir Kahane and brings this action in his own right and as Executor of the Estate of Sonya Kahane, the decedent's mother. (See Am. Compl. ¶ 8; Norman Kahane Dep. 5:12--23, Mar. 6, 2003.)

(4) Sonya Kahane, a naturalized United States citizen residing in Israel, was the mother of decedent Rabbi Meir Kahane. She passed away since the event at issue and is represented by Rabbi Norman Kahane.

(5) Tova Ettinger, Baruch Kahane, and Cipporah Kaplan bring this action in their own right as the children of the decedent, Rabbi Meir Kahane. (See id. at ¶¶ 5--6, 9.) All three plaintiffs were born in the United States and are citizens of the United States.

(6) Plaintiff Ethel J. Griffin, the duly appointed Public Administrator of the County of New York appears as the Administratrix of the Estate of Binyamin Kahane, the son of Rabbi Meir Kahane. (See id. at ¶ 7.)

(7) Binyamin Kahane was born on October 3, 1966, in the United States, and was at birth and remained until his death, a citizen of the United States. Binyamin Kahane died subsequent to his father's murder but prior to the institution of this lawsuit. (See Baruch Kahane Dep. 39:9--10, Mar. 5, 2003.)

(8) Irving Franklin and Irma Franklin were at all times relevant to this matter residents and citizens of the United States. Irving Franklin brings this action in his own right and as Administrator of the Estate of Irma Franklin, his wife. (See Am. Compl. ¶ 3.)

(9) Carlos Acosta and Maria Acosta are residents and citizens of the United States who bring this action in their own right. (See id. at ¶¶ 1--2.)

(10) Defendant Iran,"is a foreign state and has been designated a state sponsor of terrorism pursuant to section 69(j) of the Export Administration Act of 1979 (50 U.S.C.A. § 2405(j)) continuously since January 19, 1984." Flatow v. Islamic Republic of Iran, 999 F. Supp. 1, 9, ¶ 19 (D.D.C. 1998) (Lamberth, J.).

(11) Defendant MOIS is the Iranian intelligence service, functioning both within and beyond Iranian territory. Acting as an agent of Iran, MOIS performed acts within the scope of its agency, which caused the death of Rabbi Meir Kahane and the wounding of Irving Franklin and Carlos Acosta. Specifically, MOIS acted as a conduit for Iran's provision of support in the form of, inter alia, documents, training, and funding to Sheik Abdel Rahman and the Islamic Group.

II. The November 5, 1990 Shooting

(12) In the fall of 1990, Rabbi Meir Kahane, an Israeli political figure and a founder of the Jewish Defense League, embarked upon a speaking tour in the United States. At the time, Rabbi Meir Kahane was residing in Jerusalem, Israel. On the evening of November 5, 1990, Rabbi Meir Kahane gave his lecture at the Marriott Hotel located in New York City. At the conclusion of the lecture, he began conducting an informal question-and-answer session. At that time, El Sayyid Nosair approached the rabbi, produced a .357 caliber magnum revolver, and fired two shots, one of which struck Rabbi Kahane in the neck.

(13) Shannon Taylor, a photographer who was present at the lecture, observed and took pictures of Rabbi Meir Kahane after the shooting. The pictures and the testimony of Shannon Taylor establish that Rabbi Kahane was conscious and aware that his wound was fatal as evidenced by his raising his hand and gesturing with his finger consistent with an effort to signal the recitation of the Shema, a Jewish prayer particularly symbolic of the belief in one God. (See Hr'g Tr. 103--04, Mar. 31, 2003; Ex. 6.)

(14) Rabbi Meir Kahane was transported to Bellevue Hospital where he expired from his wounds.

(15) Irving Franklin attended the November 5, 1990 lecture with his wife. When the lecture was over, Franklin waited at the back of the auditorium, near the exit, while his wife talked with others. (See id. at 15.) After hearing shots, Franklin saw a man, who was later identified as El Sayyid Nosair, running towards him. Franklin attempted to grab Nosair and hold him. (See id. at 16.) When Nosair could not break free of Franklin's grip, Nosair shot him in the leg. Another photograph taken by Shannon Taylor shows Irving Franklin lying wounded and bleeding on the floor. (See Ex. 8.)

(16) Irma Franklin, now deceased, ran to the back of the room where she found her husband lying on the floor in a pool of blood. She was extremely upset and had to be comforted by others. She waited next to her husband until an ambulance arrived and took them to Bellevue Hospital. (See Hr'g Tr. 16--17.) Mrs. Franklin is also depicted in Exhibit 8.

(17) Outside the hotel, Nosair encountered plaintiff Carlos Acosta, a uniformed United States Postal police officer. (See id. at 36.) Nosair fired his weapon at Acosta, striking him in his chest and shoulder. (See id. at 36--37, 39.) Acosta, who was wearing a bulletproof vest, returned fire hitting Nosair in the neck. (See id. at 37.) After which, Acosta secured Nosair's weapon and detained him. (See id.) Acosta was also taken and admitted to Bellevue Hospital.

A picture taken by Shannon Taylor at the scene of Nosair's arrest, depicts Carlos Acosta standing near Nosair and his weapon. (See Ex. 7.)

(18) Maria Acosta was at home when she received a call from her husband explaining that he has been shot. The U.S. Postal Police Department sent an officer to her home who drove her to the hospital where Carlos Acosta was being treated. (See Hr'g Tr. 62.)

(19) On the day of the shooting, plaintiff Libby Kahane and her brother were at a hospital in Jerusalem looking after their father who was dying. (See id. at 90.) They received an early morning phone call from her brother's wife instructing Ms. Kahane to go home. (See id. at 90--91.) Upon arriving at her home, Ms. Kahane's two sons along with a local rabbi were waiting there and informed her that Rabbi Meir Kahane, her husband, had been shot and was dead. (See id. at 91.)

(20) Plaintiff Rabbi Norman Kahane, the younger brother of Rabbi Meir Kahane, was interrupted by his wife at 5:00 a.m. on November 6, 1990, while he was studying at the synagogue. (See Norman Kahane Dep. 20:7--19, Mar. 6, 2003.) She had received a phone call from a family friend informing her that Rabbi Meir Kahane had been shot, followed by another phone call explaining that he had died. (See id.) Recognizing that there was no time to mourn his brother's death, Rabbi Norman Kahane immediately began to prepare the eulogy and burial. (See id. at 21:9--13.)

(21) Plaintiff Sonya Kahane, now deceased, learned of her eldest son's death when her youngest son, Rabbi Norman Kahane, arrived at her home at 6:00 a.m. (See id. at 25:1--7.) Even before he shared the tragic news, she immediately knew that something terrible had happened. (See id.)

(22) Plaintiff Tova Kahane Ettinger, Rabbi Meir Kahane's eldest child, received a phone call between 5:30 a.m. and 6:00 a.m. from her uncle, Rabbi Norman Kahane who told her only that her father had been shot. (See Tova Kahane Ettinger Dep. 25:8--24, Mar. 6, 2003.) Upon hanging up with him, she turned on the radio and heard an announcement that her father had been killed. (See id. at 26:2--4.)

(23) Plaintiff Baruch Kahane also received a phone call early that morning from his uncle, Rabbi Norman Kahane who told Baruch Kahane that his father had been shot and killed in New York. ...


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