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Council on American-Islamic Relations Action Network, Inc. v. Gaubatz

United States District Court, District of Columbia

March 29, 2018

COUNCIL ON AMERICAN-ISLAMIC RELATIONS ACTION NETWORK, INC., et al., Plaintiffs,
v.
PAUL DAVID GAUBATZ, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          COLLEEN KOLLAR-KOTELLY United States District Judge

         Pending before this Court are CSP Defendants' [248] Motion-In-Limine (“CSP Mot.”), which is broken down into four subparts addressing witnesses, exhibits, deposition transcripts and damages; Plaintiffs' [251] Responses to CSP Defendants' Motion In Limine (“Pls' Responses”); and CSP Defendants' [254] Reply in support of Motion-In-Limine (“CSP Reply”). Also pending before this Court are Plaintiffs' [249] Motions in Limine (“Pls.' Mot.”), consisting of seven motions in limine; CSP Defendants' [250] Opposition to Plaintiffs' Motions in Limine (“CSP Opp'n”); and Gaubatz Defendants' [253] Response to Plaintiff's MILs (“Gaubatz Resp.”). Plaintiffs did not file a Reply in support of their Motions in Limine. The Court will consider the CSP Defendants' Motion in Limine together with the Plaintiffs' Motions in Limine for the sake of judicial efficiency and because of the overlap of issues therein.[1] The Court will address the Plaintiffs' Motions first, discussing each of the seven motions contained therein, in the order presented to the Court, before addressing the four subparts of the CSP Defendants' Motion in the same manner.

         As a preliminary matter, this Court notes that the two motions addressed in the opinion and the oppositions thereto are presented in a summary manner, often without sufficient detail or responsive argument to enable this Court to make a determination regarding the requested exclusion (or admission) of evidence. Furthermore, in many instances the parties fail to specify how their requests asking for the exclusion (or admission) of certain evidence relate to the elements of the claims and defenses in this case, instead focusing on extraneous facts or engaging in convoluted argument. Accordingly, under these circumstances, the Court has summarized the arguments presented by each side and then indicated that such request or objection is denied without prejudice pending supplemental briefing by the parties. The scope of this additional briefing will be set forth in more detail in this opinion.

         Plaintiffs' Motion in Limine No. 1

         Plaintiffs request that the Court preclude Defendants from referring to CAIR, CAIR-F and/or CAIR-AN as a criminal organization and/or a Muslim Brotherhood front group, which includes precluding: (1) evidence of CAIR as an unindicted co-conspirator in the HLF [Holy Land Foundation] trial; (2) evidence of the “Morris Days fraud;” (3) evidence of financial contributions and/or donations CAIR has made to any person or organization; and (4) solicitation of testimony from CAIR employees, former or present about its status as a civil rights organization for the purpose of impeaching that testimony with evidence of terrorism. Plaintiffs contend that the issue of whether any of the CAIR organizations were engaged in “criminal conduct” at the time of the alleged violations does not relieve Defendants of liability for their own misconduct for violations of the D.C. Wiretap Act, the Federal Wiretap Act, the Stored Communications Act and trespass.

         Plaintiffs assert that any “[a]llegations of criminal conduct and/or ties to terrorism, therefore, are wholly and entirely irrelevant to this case and should be excluded at trial.” Pls.' Mot. at 2.[2]Plaintiff argue further that any alleged probative value of such evidence is far outweighed by the danger of unfair prejudice pursuant to Fed.R.Evid. 403.

         The CSP Defendants submit that the CAIR Muslim Brotherhood connection evidence is relevant and directly probative of the Defendants' defense to the Federal Wiretap Act because the Act requires the CSP Defendants to know or have reason to know that Chris Gaubatz's actions violated the Act. See CSP's Opp'n at 5. The CSP Defendants allege that Defendant Brim, who received recordings from Chris Gaubatz, never even viewed or listened to the recordings, and thus she had “no knowledge or reason to believe that Chris Gaubatz was not following the legal advice provided by [David Yerushalmi] and obtaining the recordings legally.” See id. Defendants explain that, in light of the fact that Plaintiffs questioned Defendant Brim's knowledge, this Court determined previously that the issue of knowledge (or imputed knowledge) is a factual dispute. Defendants assert that in order to resolve such factual dispute, the jury needs to understand the purpose of the Muslim Brotherhood/CAIR documentary to bolster its argument that the audio-video clips were only intended as background and were not that important. See CSP Opp'n at 6. Accordingly, the CSP Defendants argue that the jury has to be made aware of the Muslim Brotherhood/CAIR connection through testimony and exhibits in this case.[3] The Court notes that this multi-faceted argument by the CSP Defendants fails to cogently explain how the allegations that CAIR is somehow linked to the Muslim Brotherhood are relevant to any of claims and defenses in this case, or the relevance of knowing the background of the documentary, and/or how the probative value of such allegations outweighs any obvious prejudice.

         The Gaubatz Defendants premise their argument in support of referring to CAIR as a terrorist group upon the Court's statement that, because CAIR-F has argued that Chris Gaubatz had the intent of committing a breach of fiduciary duty, there are two unanswered questions: (1) whether Chris Gaubatz had a fiduciary duty to CAIR-F, and (2) whether the breach of this fiduciary duty was either a primary motivation or a determinative motivating factor for the interception. See CAIR Action Network, Inc. v. Gaubatz, 31 F.Supp.3d 237, 259 (D.D.C. 2014). The Gaubatz Defendants allege generally that “the relationship between a genuine civil rights organization and a person purporting to share its ideals is more likely to establish a fiduciary relationship than if CAIR is a criminal organization which used its intern program as part of its fake civil rights persona.” See Gaubatz Resp. at 4-5. The Defendants' “argument” in support of this general statement consists of several disjointed propositions, first about general contract law, followed by statements about Hamas and cites from an opinion relating to the HLF criminal trial in Texas. The Gaubatz Defendants fail to coherently link their argument that the Defendants should be able to refer to CAIR as a terrorist organization to any of the claims or defenses in this case.

         The Gaubatz Defendants allege further that “those engaged in criminal conduct in a quasi-public location have less of an expectation of privacy than they would have if their conduct were lawful” and they note, without further explanation, that Chris Gaubatz's assessment of CAIR was colored by CAIR's status as an unindicted co-conspirator in the HLF trial. See Gaubatz Resp. at 9. The Gaubatz Defendants then proceed to cite extensively from the HLF Texas criminal case, and they launch into a historical review of the formation of CAIR, none of which has any bearing on the claims and defenses at issue in this case. Nor do the Gaubatz Defendants proffer any relevant argument linked to the claims and defenses in this case to rebut Plaintiffs' request to preclude evidence of financial contributions made by CAIR.

         With regard to CAIR's request that evidence of the “Morris Days fraud” be barred, this Court notes that the “Morris Days fraud” is the subject of one or more civil actions filed in this court, in which Defendant David Yerushalmi is listed as counsel for Plaintiffs therein, namely: Lopez v. CAIR Action Network, Inc., 657 F.Supp.2d 104 (D.D.C. 2009), aff'd, 389 Fed.Appx. 1 (D.C. Cir. 2010) (where CAIR's motion to dismiss RICO violations was granted by the District Court and affirmed on appeal); Saiyed v. CAIR Action Network Inc., Civil Action No. 10-22 (PLF) and Lopez v. CAIR Action Network, Inc., Civil Action No. 10-23 (PLF) (both set for trial in November 2018).

         The Gaubatz Defendants' proffer no argument in support of allowing the “Morris Days fraud” evidence, noting only that “[a]mong the documents that Chris Gaubatz stumbled upon and among the documents he was asked to shred, were documents relating to this fraud.” See Gaubatz Resp. at 14.

         The CSP Defendants argue that evidence of the “Morris Days fraud” is relevant and probative of a key element of the CSP defense to the Stored Communications Act charges, to wit, that David Yerushalmi advised David Gaubatz that Chris Gaubatz could legally remove documents as he had expressed, implied or constructive authority to do so. See CSP Opp'n. at 8; Defs' Answer to Third Am. Compl., ECF No. 130, at 16 ¶ 3. The CSP Defendants assert, without further explanation, that the “Morris Days fraud evidence was the impetus for this legal instruction and the basis in part for Chris Gaubatz's decision to preserve certain of these documents.” See CSP Opp'n at 9.

         Because the Defendants have failed to adequately link their arguments to the claims and defenses in this case, Plaintiffs' Motion in Limine No. 1 shall be DENIED WITHOUT PREJUDICE pending supplemental briefing by the parties. More specifically, the Defendants shall respond to Plaintiffs' request to preclude Defendants from referring to CAIR as a terrorist organization, and to preclude the introduction of evidence specified in four subparts of Plaintiffs' Motion No. 1, which is based on Plaintiffs' assertions that such evidence is not relevant and is prejudicial. In their responses, Defendants shall: (1) indicate the relevance of such evidence, (2) specify how the disputed evidence is related to and supports the elements of the claims and/or affirmative defenses in this case, and (3) explain why the probative value of such evidence would outweigh any prejudice. Defendants should abstain from making any unnecessary commentary that does not directly respond to these three inquiries, and should cite to relevant case law, where appropriate. In the event that Defendants agree that certain evidence may be precluded, they shall so indicate. Defendants' failure to respond to any aspect of Plaintiffs' Motion may be deemed a concession with regard to that part of the Motion. Plaintiffs will then have an opportunity to reply to the Defendants' responses.

         Plaintiffs' Motion in Limine No. 2

         Plaintiffs seek to preclude Defendants from presenting evidence that the United States Government “proved” or had knowledge that CAIR is founded by the Muslim Brotherhood, Hamas, or any other terrorist organization. The CSP Defendants do not specifically address Plaintiffs Motion in Limine No. 2 in their Opposition.[4] It is unclear whether the Gaubatz Defendants' one paragraph “response” to Motion in Limine No. 2 is a concession or is simply non-responsive. Accordingly, Plaintiffs' Motion in Limine No. 2 shall be DENIED WITHOUT PREJUDICE pending supplemental briefing by the parties, as explained in this Court's ruling on Motion in Limine No. 1.

         Plaintiffs' Motion in Limine No. 3

         Plaintiffs request that the Court bar any evidence that the Defendants were acting on behalf of law enforcement, the United States, or any other government agencies. The CSP Defendants do not specifically address Plaintiffs' Motion in Limine No. 3 in their Opposition. The Gaubatz Defendants “agree with CAIR that defendants were not ‘authorized law enforcement personnel, '” which might be a concession, but they also note that “this does not mean that defendants did not obtain documents with the intention of preserving evidence or turning evidence over to the FBI, Congress or other governmental entity.” See Gaubatz Resp. at 15. Accordingly, Plaintiffs' Motion in Limine No. 3 shall be DENIED WITHOUT PREJUDICE pending supplemental briefing by the parties, as explained in this Court's ruling on Motion in Limine No. 1.

         Plaintiffs' Motion in Limine No. 4

         Plaintiffs seek to bar evidence of Defendant David Gaubatz's training as an Arab linguist and prior employment with the United States Air Force as a Special Investigations Special Agent, on grounds that such evidence is not relevant to this case, and it “will solely be used to legitimize the Defendants'' violations of the law” even if David Gaubatz's experience and credentials are not a defense. See Pls.' Mot. at 6. Plaintiffs assert further that even if such evidence is relevant, it is misleading regarding Defendant Gaubatz's authority to investigate.

         The Gaubatz Defendants argue that a defendant's background helps contextualize his testimony as it can explain motive, knowledge and intent, and in this case, it also explains “the relationship between P. David Gaubatz and the other defendants.” See Gaubatz Resp. at 16. The Gaubatz Defendants contend that this evidence counters contentions that David Gaubatz is anti-Arab and is integral to David Gaubatz's desire to accurately portray CAIR.

         The CSP Defendants assert that David Gaubatz's background is relevant to the issue of respondeat superior liability and the question of whether David Gaubatz was an agent of any of the CSP Defendants or an independent contractor. More specifically, the CSP Defendants argue that because of David Gaubatz's “experience, awards, and citations operating as a military law enforcement officer and intelligence officer, in addition to his civilian duties for the military during the Iraq war and, of course, his successful supervision of SANE's “Mapping Sharia” project, ” the CSP Defendants treated David Gaubatz as an independent contractor. CSP Opp'n at 11. Furthermore, the CSP Defendants contend that evidence regarding David Gaubatz's training and employment “provides an important element in the CSP Defendants' ‘lack-of-knowledge” defense under the Federal Wiretap Act” because the CSP Defendants relied on David Gaubatz's “assurances that all matters in the filed were being conducted legally, ” and they were confident to let David Gaubatz “conduct the logistics of the Muslim Brotherhood/CAIR documentary.” Id.

         Because the Defendants have failed to adequately link their argument to the claims and defenses in this case, Plaintiffs' Motion in Limine No. 4 shall be DENIED WITHOUT PREJUDICE pending supplemental briefing by the parties, as explained in this Court's ruling on Motion in Limine No. 1.

         Plaintiffs' Motion in Limine No. 5

         Plaintiffs seek to preclude Ms. Haddadi or any other former or current CAIR employee from testifying about alleged discrimination and/or mistreatment within CAIR. The CSP Defendants do not specifically address Plaintiffs' Motion in Limine No. 5 in their Opposition. The Gaubatz Defendants assert, without further explanation, that this type of evidence is “relevant to the degree of trust, if any, placed by CAIR in Chris Gaubatz.” See Gaubatz Resp. at 16. Accordingly, Plaintiffs' Motion in Limine No. 5 shall be DENIED WITHOUT PREJUDICE pending supplemental briefing by the parties, as explained in this Court's ruling on Motion in Limine No. 1.

         Plaintiffs' Motion in Limine No. 6

         Plaintiffs seek to bar any evidence that attempts to exploit and attack Islam. The CSP Defendants do not specifically address Plaintiffs' Motion in Limine No. 6 in their Opposition. The Gaubatz Defendants state that this issue has been “addressed in full in to the introductory paragraphs.” See Gaubatz Resp. at 17. Defendant then launch into a discussion about women's rights in the Islamic community and the film the Honor Diaries without indicating the relevance of this discussion to the issues in this case, instead castigating CAIR for alleged internal problems with discrimination against women. Accordingly, Plaintiffs' Motion in Limine No. 6 shall be DENIED WITHOUT PREJUDICE pending supplemental briefing by the parties, as explained in this Court's ruling on Motion in Limine No. 1.

         Plaintiffs' Motion in Limine No. 7

         Plaintiffs move to preclude any affirmative defense that was not pled in Defendants' Answer or a dispositive motion. “[I]t is well-settled that [a] party's failure to plead an affirmative defense . . . generally results in the waiver of that defense and its exclusion from the case.” Kapche v. Holder, 677 F.3d 454, 465 (2012) (citing Harris v Sec'y, U.S. Dep't of Veterans Affairs, 126 F.3d 339, 343 (D.C. Cir. 1997) (internal quotation marks and emphasis removed)). Therefore, in the ...


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