Full opinion text
MEMORANDUM OPINION AND ORDER BRIAN M. COGAN, District Judge. Table of Contents INTRODUCTION.. to to 00 EVIDENCE AT TRIAL. to to to I. Plaintiffs’ Case.299 II. Defendant’s Case.305 STANDARD OF REVIEW.310 DISCUSSION.310 I. Sanctions Order. H r-< CO A. Background.'. B. The Effect of the Permissive Inference. H 00 r-4 v — ( CO OO C. The Effect of the Preclusion Order-U5 r-f CO D. The Solicitor General’s Certiorari Brief OO ¶ — ( CO II. “Act of International Terrorism” . OO to CO III. Causation . CO to CO A. Governing Law.'. OO to B. Jury Charge. CO OO C. Sufficiency of the Evidence. 00 to OO IV. Attribution to Hamas. o CO CO V. Scienter. CO CO VI. Respondeat Superior. lO CO CO VII. Evidentiary Rulings. CO CO A. Authentication Generally. CCO CO B. Declarations Against Interest. OO CO CO C. Foreign Law . CO ^ CO D. Israeli List of Unlawful Associations and Terrorist Organizations ^ ^ CO E. FinCEN Assessment-lo ^ CO F. Saudi Committee Experts <D ^ CO VIII. Trial Structure. OO CO IX. Defendant’s 1292(b) Motion ... CO cn © CONCLUSION .. © LO CO INTRODUCTION This case involves claims brought under the civil liability provisions of the Anti-Terrorism Act (“ATA”), 18 U.S.C. § 2383(a) et seq., against defendant Arab Bank, PLC. Plaintiffs are American citizens who were the victims, or relatives of victims, of 24 terrorist attacks in Israel and the Palestinian Territories. After a lengthy trial, a jury found that those attacks were perpetrated by the Palestinian terrorist group Harakat al-Muqawama al-Islamiya (“Hamas”) during the Second Intifada, a time of great violence between 2000 and 2005. It also found that defendant knowingly provided financial services to Hamas by providing financial services to its operatives; to 11 charities controlled by Hamas; and to an organization called the Saudi Committee for the Support of the Intifada Al-Quds, an entity connected to the Saudi Arabian government that made payments to beneficiaries identified by Ha-mas-controlled organizations, including the families of Hamas suicide bombers and prisoners. Before me is defendant’s timely motion for judgment as a matter of law under Federal Rule of Civil Procedure 50. In the alternative, defendant has moved for a new trial under Rule 59 and for certification of an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). EVIDENCE AT TRIAL Much of the evidence that was introduced at trial had been previewed in detail in numerous pretrial rulings in this decade-old litigation. See, e.g., Linde v. Arab Bank, PLC, 269 F.R.D. 186 (E.D.N.Y.2010); Linde v. Arab Bank, PLC, 384 F.Supp.2d 571 (E.D.N.Y.2005). The following is a partial summary of the evidence presented over the course of the approximately six-week trial. I. Plaintiffs’ Case Plaintiffs first called Evan Kohlmann, an international terrorism consultant, principally to determine whether' or not Ha-mas — “a terrorist organization that was founded in approximately December of 1987” — had ever issued claims of responsibility for the 24 terrorist attacks at issue in this ease. Mr. Kohlmann is an expert in international terrorism specializing in terrorist communications and previously has been so qualified in domestic and foreign cases. He has given similar testimony in criminal prosecutions. See United States v. Ali No. 10-cr-187, 2011 WL 4583826, at *6 (D.Minn. Sept. 30, 2011) (“Kohlmann will testify regarding several communiques posted to the official al-Shabaab website, and that these communiques claim responsibility for certain events. Kohlmann’s testimony as to these claims of responsibility, their source and their authenticity will assist the jury in understanding the discussions between the conspirators.”). Mr. Kohlmann testified that he had reviewed a fist of the 24 attacks at issue and had concluded, based on his approximately twenty years researching Hamas communications, that “Hamas has indeedf ] issued communiques or other claims of responsibility, in which they have indicated their involvement or at least claimed their involvement in these various attacks.” Mr. Kohlmann testified that Hamas issues claims of responsibility for terrorist attacks in order to: (1) “announce their presence both on a local stage as well as international stage”; (2) “attract new members”; and (3) “solicit financial donations.” As part of his testimony, Mr. Kohlmann authenticated two websites as sources of Hamas communications: Palestine-info. com and alqassam.ps. He explained that the first website represents the political wing of Hamas, and the second is the website for Hamas’ military wing. Mr. Kohlmann described the factors, which were “both extrinsic as well as intrinsic,” that led him to conclude that these were Hamas websites. He testified that those factors included: the reliance by the United States and other governments on the webpages as authentic sources of Hamas communications; the language and facts used in postings;. the posting of exclusive interviews with Hamas leaders and nonpublic details of their lives; and the fact that the websites contained official Hamas seals and watermarks. After authenticating the websites, Mr. Kohlmann also authenticated many communiques, which he testified are official communications from a terrorist group, in which Hamas took credit for the attacks at issue in this case. Among them were video wills of individuals who were about to commit terrorist attacks. For instance, Mr. Kohlmann authenticated the video will of Raed Abdul Hamid Misk, which was received in evidence over defendant’s objection. Mr. Kohlmann identified Misk and concluded that his video will was an authentic claim of responsibility by Hamas because, among other reasons, the video will was available in the “martyr” subsection of the alqassam.ps website and because Misk identified himself as being part of the military wing of Hamas. Mr. Kohl-mann also authenticated portions of the websites that were not claims of responsibility, but were calls for donations to Ha-mas at a particular Arab Bank account. These postings were also admitted in evidence over defendant’s objection. Mr. Kohlmann identified Osama Ham-dan as a senior Hamas spokesman and an account holder at Arab Bank in Lebanon. The latter was based on an authentication of Hamdan’s passport, which was filed in connection with Hamdan’s obtaining an Arab Bank account, and which was received in evidence. In connection with this testimony, Mr. Kohlmann authenticated certain bank transfer (“SWIFT”) records processed through Arab Bank for Ham-dan’s account, and in which the beneficiary of the transfer was listed as “Harakat al Muqawamah al Islamiyah Hamas.” Through Mr. Kohlmann, plaintiffs introduced a CNN interview with Hamdan, in which Hamdan claimed responsibility for the March 27, 2002 Park Hotel bombing on behalf of Hamas. During cross-examination, Mr. Kohl-mann conceded that with respect the January 29, 2004 suicide bombing on Bus No. 19 (discussed further below), another terrorist organization, the Al-Aqsa Martyrs Brigade (“AAMB”), along with Hamas, issued a claim of responsibility for the attack. In addition, defendant pointed out the lack of corroboration for some of Ha-mas’ claims of responsibility and Mr. Kohlmann acknowledged that Hamas has motives to lie about such claims for propaganda purposes. Ultimately, however, this did not change. Mr. Kohlmann’s conclusion that Hamas claimed responsibility for each of the attacks at issue in this case. Plaintiffs next called Dr. Matthew Levitt, a director at the Washington Institute for Near East Policy, who has been qualified as an expert on Hamas in federal court on numerous other occasions. Prior to his current role, Dr. Levitt did counter-terrorism work for the United States Department of Treasury, the FBI, and the United States Department of State. Initially, Dr. Levitt provided “a little bit of Hamas 101,” describing the organization as an “extremist group” that was designated as a terrorist group by the United States. He explained that terrorist designations^ — which include the terms Foreign Terrorist Organization (“FTO”), Specially Designated Terrorist (“SDT”), and Specially Designated Global Terrorist (“SDGT”) — are labels used by the United States Departments of State and Treasury to “make it more difficult for-organizations that are involved in illicit activity, in this case terrorist activity, to be able to raise, launder, move and access money.” Dr. Levitt also introduced the jury to the role of designation lists, or “black list[s],” issued by the United States Office of Foreign Asset Control (“OFAC”). Dr. Levitt testified about numerous Ha-mas leaders. One of the key individuals among those was Sheikh Ahmed Yassin, a paraplegic, who was a religious figure and one of the founders of Hamas, and who was regarded'as Hamas’ spiritual leader. Dr. Levitt also spoke about Salah Sheha-dah, the one-time leader of Hamas’ military wing, which is known as the Izz al-Din - al-Qassam Brigades. During this testimony, Dr. Levitt authenticated the terrorist designations of various individuals by the United States government. He also authenticated SWIFT transfers which showed funds being wired through Arab Bank to various individuals associated with Hamas. For example, Dr. Levitt testified about a wire transfer for $20,000 to Ismail Abd Al Salam Haniyeh, whom he described as “the one time Hamas prime minister, another time the head of the Hamas political branches that were in the Gaza Strip.” In addition, Dr. Levitt testified about the relationship of certain charities to Ha-mas. He concluded that these charities were controlled by Hamas and tunneled money to it via Arab Bank. This conclusion was based, in part, on evidence that many of the charities were founded by senior Hamas leaders or had Hamas operatives on their boards, as well as on findings by the United States government. One such charity, the Al Salah Islamic Society, he described as “a fairly significant Hamas-affiliated charity in the Gaza Strip.” In fact, he explained that another Hamas leader, Ismail Abu Shanab, called the Al Salah Islamic Society an “important early Hamas-affiliated charity.” Two other charities, the Nablus Zakat and the al-Tadamun Society, were associated with Sheikh Bitawi, “a long time Hamas leader in the West Bank.” Through Dr. Levitt, plaintiffs put in evidence the terrorist designations of various charities, including the Al Salah Islamic Society and the Union of Good, an “umbrella organization” which encompasses many of the groups at issue in this case and which was created by the leadership of Hamas. Dr. Levitt also offered testimony about the Saudi Committee, one of the charities included in the Union of Good. He stated, in concurrence with a German intelligence report, that the Saudi Committee passed donations through to the families of martyrs, which included suicide bombers. Dr. Levitt testified that, based on his investigation, he had concluded that defendant processed those payments on behalf of the Saudi Committee. Dr. Levitt also authenticated SWIFT transfers showing money being wired through Arab Bank to various charities that he identified as being associated with Hamas. As just one example, he authenticated a SWIFT transfer showing $7,800 being sent to the Islamic Society, Gaza, one of the charities at issue in this case; through Arab Bank. He also authenticated a wire transfer showing $12,000 going to the Ramallah Zakat Committee, another of the charities at issue. Finally, through Dr. Levitt (and over defendant’s objection), plaintiffs entered certain videos in evidence, including one produced by Al-Manar television- — which is the television station of Hezbollah, a terrorist organization in Lebanon — depicting school children dressed up as terrorists at an event for one of the charities at issue. Dr. Levitt testified that he recognized the logo of the television station and was personally familiar with the video, as well as its use by law enforcement agencies in other countries. Over the next three days of trial, plaintiffs presented the testimony of Mr. Ronni Shaked, a former paratrooper and intelligence analyst, now a researcher and journalist associated with Hebrew University in Jerusalem. Mr. Shaked testified that, in his assessment, the 24' attacks at issue in this case were, in fact, perpetrated by Hamas. His investigation relied on, among other things, Israeli Security Agency (“ISA”) reports, local police reports, and claims of responsibility. Effectively, only two attacks are at issue in the instant motion. With respect to the January 29, 2004 suicide bombing on Bus No. 19, Mr. Shaked explained that the suicide bomber, AJi Ja’ara, approached two individuals, Nu-fal Adawin and Muhammad Nashash, and indicated that he wanted to carry out a suicide attack. They prepared an explosive device and planned an attack. Adaw-in. was later convicted of various terror-related crimes, including membership in Hamas. But the initial attack was never carried out, because Ja’ara encountered a checkpoint on the way to his target and was forced to turn back. Sometime later, Ja’ara approached operatives from the AAMB and reiterated his desire to carry out a suicide attack. Cross-examination revealed that Nashash was, in fact, convicted of membership in another Palestinian terrorist group, the AAMB. Mr. Shaked acknowledged that the AAMB, not Hamas, provided Ja’ara with the bomb and drove him to his target, where he boarded a bus and detonated it. Ja’ara identified himself as an AAMB operative in his will. Four AAMB operatives were convicted for the Bus No. 19 attack. The ISA report on which plaintiffs heavily relied stated that the AAMB claimed responsibility for the Bus No. 19 attack. Mr. Shaked also attributed the September 24, 2004 mortar attack on Neve Dekal-im, in Gaza, to Hamas. He based his determination on Hamas’ claim of responsibility, and on an assessment that Hamas was the only-Palestinian organization commonly using certain types of mortars at that time. On cross-examination, he conceded that other terrorist organizations were, in fact, using the same mortars during this time period. Plaintiffs next called Arieh Spitzen. Mr. Spitzen was employed by the Israeli Defense Force between 2001 and 2009, and was the head of the Palestinian Affairs Department for the Coordinator of Government Activities in the Territories. Like Dr. Levitt, Mr. Spitzen offered corroborative testimony regarding the Hamas affiliations of many individuals discussed above, such as Sheik Yassin and Salah Shehadah. Similarly, Mr. Spitzen evaluated many of the charities at issue in this case from 1999 through 2005 and identified numerous prominent Hamas officials who occupied leadership roles in these charities. Mr. Spitzen repeatedly qualified his opinions by reminding the jury that he had not been able to review the full set of defendant’s customer files because defendant had refused to transfer the records to him. Nevertheless, he explained that he was able to find wire transfers for many Hamas leaders that went through Arab Bank. For instance, Mr. Spitzen was able to locate certain wire transfers to Sheikh Yassin in 2001. He testified that it was Yassin’s account that was referred to in an internet posting where Abd al-Azis al-Ran-tisi, another Hamas leader, stated that those who wished to donate money to support Hamas and those harmed in the Second Intifada should send donations to the account of Sheikh Yassin at Arab Bank: “[H]ere is the account number: The Arab Bank — Gaza, account number 36444, the sheikh Ahmad Yassin.” In fact, Mr. Spit-zen testified that on May 30, 2001, this same account, number 36444, belonging to Yassin, received a $60,000 wire transfer processed through Arab Bank from an individual named Yousef El-Hayek. Mr. Spitzen identified a transfer to El-Hayek from Osama Hamdan, who sent El-Hayek a check for $10,000 from his Arab Bank account. He also identified 223 individuals, either leaders of Hamas or their family members, who received transfers of funds (including many from El-Hayek) that were processed by Arab Bank. Based on the records that he was able to obtain, Mr. Spitzen testified that the following individuals received transfers through Arab Bank: 1. Halima Hassan Yassin, Sheikh Yas-sin’s wife, received six Arab Bank transfers between November 2000 and May 2001 in the amount of $153,435. 2. Salah Shehadah received seven Arab Bank transfers between November 2000 and February 2001 in the amount of $109,500. 3. Ismail Haniyeh, the Bureau Chief of Sheikh Yassin’s Bureau, received 19 Arab Bank transfers between July 2000 and September 2001 in the amount of $420,100. 4. Ismail Abu Shanab, another Hamas founder, received nine Arab Bank transfers between August 2000 and August 2001 in the amount of $173,172. 5. Abbas Al-Sayyed, the individual who confessed responsibility for the Park Hotel bombing in 2002, received nine Arab Bank transfers between February 2001 and May 2001 in the amount of $123,000. Mr. Spitzen also testified extensively about the charities at issue in this case, all of which had Arab Bank accounts, and all of which he testified were controlled by Hamas. He authenticated an Israeli list of Unlawful Associations and Terrorist Organizations, which he testified was published in the Official Gazette of Israel, the Israeli equivalent of the Federal Register. The list was received in evidence over defendant’s objection. Mr. Spitzen testified that various organizations on this list were controlled by Hamas, and that he was able to locate money transferred through Arab Bank for virtually all of the charities at issue in this case during the Second Intifada. Using figures calculated by another of plaintiffs’ experts, forensic accountant Wayne Geisser, Mr. Spitzen testified that $32,312,170 was transferred to the Arab Bank accounts of these charities. In particular, Mr. Spitzen testified about the Saudi Committee, which is one of the 50 member organizations of the Union of Good. He stated that the Union of Good is an umbrella organization that “was established with the special purpose by Hamas leaders to transfer funds to Hamas.” He further testified that through Arab Bank, the Saudi Committee “transferred funds to the families of Hamas suicide bombers, to Hamas prisoners and operatives.” Of the $32,312,170 transferred to the charities, Mr. Spitzen testified that “some 15 million plus dollars” was transferred by the Saudi Committee to nine of those charities. Mr. Spitzen also testified that many of the charities at issue handed out Hamas propaganda, and often gave funds to terrorists and their family members. Specifically, he testified that he was familiar with “lists showing martyr payments to families of suicide bombers and other terrorists” from his time working for the Israeli government. Mr. Spitzen explained that these “martyr files” were similar to social security files in that they described the martyr, the circumstances of his death, his background, and any money transferred to him or his family. He discussed the lists of payments to martyrs’ families produced by defendant, which were admitted in evidence. From these martyr lists, Mr. Spitzen concluded that the Saudi Committee made 24 payments to the families of suicide bombers from Hamas via Arab Bank from 2000 through 2002. He testified that these included payments to the immediate relatives of Hamas suicide attackers who perpetrated four of the terrorist attacks at issue: (1) the June 1, 2001 Dolphinarium bombing; (2) the August 9, 2001 Sbarro Pizzeria bombing; (3) the December 1, 2001 Ben Yehuda Street bombings; and (4) the December 12, 2001 shooting attack on Bus No. 189 in Emmanuel. Plaintiffs also put into evidence two of defendant’s interrogatory answers. The first interrogatory asked defendant to “[s]tate the total number of fund transfers you processed for Palestinian Foreign Terror Organizations, Specially Designated Terrorist and Specially Designated Global Terrorists from the date of designation of those individuals or entities by the United States Government through December 31, 2007.” Defendant answered “Arab Bank processed 282 funds transfers in which parties identified on Exhibit A were either the originator or the beneficiary from the date of the designation of those individuals or entities by the United States Government through December 31, 2007.” The second asked defendant to “[s]tate the total dollar amount” of all such funds transfers. Defendant answered that “Arab Bank processed $2,563,275 in funds transfers in which parties identified on Exhibit A were either the originator or the beneficiary from the date of designation of those individuals or entities by the United States Government through December 31, 2007.” Plaintiffs supported their case-in-chief, throughout, with the videotaped deposition testimony of numerous bank employees. For example, the jury watched the deposition testimony of Mohammad al-Tahan, one of defendant’s operations managers, who acknowledged a 2001 letter from Arab National Bank (the Bank’s correspondent bank in Saudi Arabia) titled “Outward Transfers As Per the Request of the Saudi Committee For Support of the Intifada Ai Quds.” This document appended lists of payments to the families of deceased individuals, whose cause of death was noted as amaliya istashidaya, which Mr. al-Tahan testified means “martyrdom operations.” Mr. al-Tahan also testified that when he came into possession of these lists, he simply passed them along to the attention of another bank employee, Assad Saleh (who, for his part, testified that in processing these transfers he had simply “carried out [his] duties” to the correspondent bank). .The videotaped deposition testimony of certain of defendant’s employees also evidenced that some of its employees knew that Sheikh Yassin was a leader of Hamas. For instance, Mr. al-Tahan' admitted that he knew that Sheikh Yassin was “a terrorist leader of a terrorist group.” Defendant’s Chief Compliance Officer in the Palestinian Territories, Tayseer Sadeq, testified that Yassin “is known throughout the world” as “the head of the Hamas organization in the Palestinian Territories, and this is no secret.” Plaintiffs also played the video deposition testimony of David Blackmore, a former compliance officer for defendant’s London branch. The significance of this testimony, in terms of undermining defendant’s central theory of the case — that its sole obligation was to make sure that it was not dealing with OFAC-designated entities or individuals — is hard to overstate. When Mr. Blackmore was asked to provide his view of the Saudi Committee wire transfer made payable to “[t]he family of the martyr Ibrahim Abdul Karim Bani Awdah,” and processed by defendant, he testified as follows: Q. And the beneficiary name is not specific in the sense that it doesn’t say exactly who is to receive the wire transfer, it’s the family of that particular martyr. Were there policies and procedures in effect at Arab Bank in the United Kingdom that would have prevented executing a wire transfer where there is no specific account number listed and no specific 'beneficiary name provided? A. There would have been a number of reasons why this would not have been applied, firstly, because as you rightly say ... the beneficiary name is not specific, there’s no account number, the payment for the original transaction I notice is in cash. We would never in a million years have dealt with a payment order such as this. (Emphasis added). II. Defendant’s Case Defendant opened its case by calling Sabih Al-Masri, who has been the chairman of Arab Bank for two years and has sat on its board since 1998. He testified as to the history of Arab Bank and its operations, including its expansion in the Palestinian Territories during the period after the Oslo Accords were signed in the mid-1990s. Specifically, he testified that the Second Intifada had a substantial negative impact on defendant’s operations in Gaza and the West Bank during the time period of the attacks at issue in this case. Over plaintiffs’ objection, he testified as to the operation of defendant’s audit committee. On cross-examination, he conceded that he has limited day to day involvement with defendant’s operations, and that he had never heard of the Saudi Committee until the commencement of this suit. Defendant next called Dr. Beverly Milton-Edwards, an author and scholar who has written extensively on Hamas. She testified that she had conducted extensive field work traveling with Hamas during the Second Intifada, including with members of the al-Qassam Brigades. She was called for the purpose of giving her assessment of the 11 zakat (charitable) committees, specifically (1) to opine on whether they were controlled by Hamas, and (2) whether the public perceived them as being controlled by Hamas during the relevant period (2002-04). Based on her field work and research, she concluded, in short, that the answer to both questions was no. The effect of cross-examination on Dr. Milton-Edwards’ testimony, and its potential spillover effect on the credibility of defendant’s entire case, is again hard to overstate. First, asked on direct examination whether she had “observe[d] any evidence at all that Hamas was controlling ... any of these eleven Zakats and charitable organizations during the relevant time period,” she answered that she had seen none, nor had she seen Hamas “paraphernalia” during her visits to all but two of the charities in question during the relevant period. On cross-examination, among other things, Dr. Milton-Edwards was shown a photograph (in fact, a still frame taken from a promotional video which had been released in connection with the launch of her book, Hamas: The Islamic Resistance Movement, in 2010). She identified several individuals appearing in the photo, including Sheikh Yassin, Abd al-Azis al-Ran-tisi, and Salah Shehadah. Other than a “symbol of Hamas” appearing on a billboard in the photo, she could not point to “anything else on it that tells you it’s a Hamas image.” On the billboard, however, were the words Muka Mahal Islamiah, which means “Islamic Resistance Movement,” followed by the word .“Hamas.” She was asked: “Can you tell us what it says right here on the bottom?” She replied: “No, I can’t. It’s in Arabic.” In other respects, Dr. Milton-Edwards’ testimony was contradicted by her own book. For example, she testified about the whether the Islamic Society, Gaza, a charity for which defendant processed transactions, was controlled by Hamas: Q: Did you apply your research criteria to determine whether or not ... the Islamic society was controlled or perceived to be controlled by Ha-mas during the 2000-2004 time period? A: Yes, I did. Q: And what conclusion did you reach? A: I reached the conclusion that they weren’t controlled by Hamas, nor did the Palestinians perceive them as being controlled by Hamas. On cross-examination, she was confronted with a passage from her book, which stated: But the work of the Islamic Society and the rest of Hamas’s network in the dee- . ades up to, during and after the second intifada, when families needed it most, represented not so much a donation as an investment by .Hamas, one that reached a lucrative political dividend in the 2006 election. Dr. Milton-Edwards also testified that when she had met Musri Al-Masri, an “emerging leader” of Hamas, in 2005 or 2006, she was “never informed” of him having any connection with the Al Nur Prisoner Society. She was confronted with an excerpt from her book in which Al-Masri is identified as someone “involved as a Board member of the Gaza based charity Al-Nour.” She dismissed the inconsistency with the telling observation that “you know my book much, much better than I do,” and, when pressed, acknowledged that she had “forgotten I had written this in the book with my co-author.” Defendant’s next witness was Shukry Bishara, who is the head of the Palestinian Monetary Authority and a former executive of the Bank. He explained the impact of the Second Intifada — including the Sbarro Pizzaria attack on September 21, 2001 — on both his family and on defendant’s operations. Because his knowledge of defendant’s policies extended beyond the Palestinian Territories, he was allowed to authenticate plaintiffs’ exhibits 1 and 41, which were examples of defendant’s internal guidance from the beginning of the Second Intifada concerning its anti-money-laundering policies. Despite an instruction limiting his testimony on these subjects to defendant’s policies outside of the Palestinian Territories, he testified that they were in force “across the institution.” Bishara testified that, to his knowledge, during 2000-01, the Saudi Committee offered three categories of “programs and benefits,” specifically humanitarian aid; repair and construction; and unemployment benefits. He also testified that the account of Osama Hamdan had received five transfers after his OFAC designation, and had been closed as a result of his designation, in 2004; about $8,000 was returned to him out of escrow. In fact, as noted above, defendant had long since admitted in its interrogatory responses that it had returned over $2 million to account-holders whose accounts were frozen after their designation by OFAC. Bishara and others testified that defendant “had to” return frozen assets to known terrorists in such cases. On cross-examination, Bishara acknowledged a 2001 letter titled “Payment of incoming transfers for the benefit of the families of the martyrs and the injured of the Al-Aqsa Intifada,” in which he wrote that defendant “strive[s] for the success” of this party’s [ie., the Saudi Committee’s] project.” He acknowledged defendant’s possession of the payment lists for surviv- or benefit payments from the Saudi Committee, on which the cause of death for certain beneficiaries was listed as amaliya istashidaya, which, as noted above, was translated as “martyrdom operations,” and which defendant’s regional compliance manager acknowledged means “suicide operation.” Defendant also called Jamal Hurani, defendant’s CEO for the Palestinian Territories. He testified extensively, as the others before him, about the impact of the Second Intifada on his family and on bank operations. Over plaintiffs’ objections, Hurani also testified at length about defendant’s policies for compliance with Palestinian Monetary Authority regulations (although he was not allowed to testify as to defendant’s adherence to such policies in that area). Hurani, who rose to the executive ranks from being a programmer, also testified about the automated operation of defendant’s OFAC compliance software, and the manner in which transactions are flagged by the system for review. Defendant then called Brian Billard, a New York-based Arab Bank executive who, from 1999 to 2004, was its comptroller and compliance officer. Billard testified that from the outset, he had been “very impressed” with defendant’s compliance policies because “everybody was involved” in that function. Because defendant’s department heads “had many years of knowledge” in compliance, he was “very comfortable.” Billard explained at length the role of defendant’s New York branch (since converted to an agency), specifically its role in “dollar clearing” for overseas transactions in U.S. dollars and service to U.S. companies generally. Again consistent with the central theory of defendant’s case, he explained the central role of the OFAC list in defendant’s U.S. compliance procedures, and opined that decisions about who should be on the list are properly the role of law enforcement, not the banks that must comply with the list. Billard recounted his pre-trial review of several hundred individual transactions that had passed through the New York branch, and cleared the OFAC list, including some initiated by Yousef El-Hayek. He also acknowledged payments to and from nine charitable organizations, for example, from the Al-Aqsa foundation of Saudi Arabia (a charity designated by OFAC in 2003) to the Ramallah Zakat Committee. Billard noted only two missed transactions from designated entities, both from Interpal, which had been missed due to “human error.” He emphasized the strength of defendant’s compliance efforts generally, calling those efforts “strict,” defendant’s record-keeping “very good,” and its approach “conservative.” He also testified to certain specifics, such as that defendant was “prompt” in filing mandatory Suspicious Activity Reports. However, on cross-examination, Billard was confronted with certain findings issued in a 2004 assessment by the Department of Treasury’s Financial Crimes Enforcement Network (“FinCEN”). The assessment included findings that defendant had had not filed “the majority of its Suspicious Activity Reports referencing terrorist financing until after the [United States] Office of Controller of the Currency [“OCC”] commenced a review of its funds transfer activity in June of 2004,” which was also after the commencement of this lawsuit; that “names similar to those of originators and beneficiaries of funds transfers cleared by Arab Bank-New York appeared in credible and publicly available sources of information, including Congressional testimony, ’ indictments in the United States, and well publicized research and media reports linking the originators and beneficiaries to illicit activities”; and that “[o]nce a designation occurred, Arab Bank-New York failed to review recent activity occurring prior to the designation and associated with the designated entities to identify potentially suspicious activity.” He testified, however, that he had never read the FinCEN report in full, in part because “[tjhat was being handled by counsel.” With respect to defendant’s reliance on the OFAC list to identify suspect transactions, Billard also conceded that a number of payments that had been “straight through processed” — ie., without human intervention — by the branch were made by or to designated individuals. These transactions included those made, for example, by Yousef El-Hayek to Sheik Yassin. Bil-lard also conceded that, beyond the OFAC list, there would be other ways to obtain personal knowledge that a particular bank customer was a terrorist. Defendant then called Mohammed Dabbour, defendant’s senior vice president and director of compliance, based at defendant’s Amman headquarters. Over plaintiffs’ continued objections and requests for limiting instructions, he testified at length regarding international banking standards, including those established by the Basel Committee and Financial Action Task Force (“FATF”). He explained the “know your customer” rules, use of blacklists, training, and the “150, [or] 200 people” whose “primary responsibility was combat-ting money laundering and terrorism financing” at the Bank. He also explained “home and host” standards, which apply local regulations to banks doing business anywhere other than their home jurisdictions. Finally, he explained defendant’s policy of required photo identification for any non-customer who is the beneficiary of a wire transfer. On cross-examination, Dabbour was asked whether he was aware that defendant had admitted (which it had) “that it maintained accounts for eleven United States designated terrorists on the OFAC list?” He answered that he was. When asked to name them, he refused to answer, invoking the right to privacy of defendant’s account holders. He also admitted knowing that defendant had transferred over $2.5 million to former customers whose accounts had been closed as a result of OFAC designation. Like the testimony of David Blackmore, Dabbour’s cross-examination undercut the central theory of the Bank’s defense, that it could not be expected to do more than check transactions against the OFAC list. He was confronted by testimony at his deposition, at which he had stated: “[I]f upon discovering an unusual transaction by — by one of our customers as part of the investigation in the account of our customer, we might look to see if there is any information available in the public domain. And that would be part of the investigative process.” Defendant called three other former employees of the Bank in the Palestinian Territories during the relevant time. They were Mazen Abu Hamdan, the regional head of compliance, Baker Mohammed Ahmad Al-Omari, a former manager of a branch in the West Bank, and George Kawwas, a retired Bank employee from Bethlehem, located close to the border between Israel and the West Bank, just south of Jerusalem. They testified as to the catastrophic impact of the Second Intifada on the Bank’s operations. In addition, among other things, these Bank employees testified to the widespread dissemination of posters bearing “pictures of martyrs” throughout the Palestinian Territories, including on the fronts of Arab Bank branches. Defendant’s final fact witness was Man-ny Caravanos, the Bank’s vice president of operations for (ie., the head of) the New York branch. He testified that he was responsible for ensuring defendant’s compliance with OFAC. He explained the technical standard (SWIFT) by which international transfers are processed and, like Mr. Billard, opined that a person or entity’s presence on the OFAC list was a matter for law enforcement, not banks. Yet on cross-examination, Mr. Caravanos acknowledged that he was not aware of the 11 accounts held by the Bank in the Palestinian Territories for designated individuals, nor the $2.5 million that had been returned to these individuals when their accounts were closed. Defendant closed its case with the expert testimony of Anne Vitale, a former prosecutor and consultant to the financial services industry with respect to money laundering and antiterrorism compliance. Her testimony was focused on explaining international standards, including the Basel Committee on Banking Supervision, the Financial Action Task Force, and the Wolfsberg Group. She explained in detail the mechanism by which banks can process wire transfers to non-account holders, and the know-your-customer protections that govern such transactions. She provided the jury with a detailed picture of the use of blacklists such as the OFAC list. Over plaintiffs’ objection, she testified that it was not common during the relevant period for foreign banks to use this country’s OFAC list, but that of the host country. She opined that defendant’s OFAC-only approach to screening for transfers to terrorists or terrorist organizations was consistent with the international standards of the time. STANDARD OF REVIEW Rule 50 provides for entry of judgment as a matter of law where “the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party” on the issue or issues that are the subject of the motion. Fed.R.Civ.P. 50(a). A court reviewing a Rule 50 motion “must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.” Cross v. New York City Transit Auth., 417 F.3d 241, 247 (2d Cir.2005) (citations omitted). The burden on the moving party is “particularly heavy where the jury has deliberated in the case and actually returned its verdict” in favor of the non-movant. Id. at 248. Rule 59 provides a court with discretion to grant a new trial if it is persuaded that there were, among other things, errors of law in charging the jury or improper admission or exclusion of evidence. See Song v. Ives Labs., Inc., 957 F.2d 1041, 1047 (2d Cir.1992). A court “may not disturb the jury’s verdict unless there was no substantial evidence to support it.” Compton v. Luckenbach Overseas Corp., 425 F.2d 1130, 1133 (2d Cir.1970). “The judge’s duty is essentially to see that there is no miscarriage of justice.” Id. Under § 1292(b), a court may certify an interlocutory order for appellate review if (1) it “involves a controlling question of law,” (2) “as to which there is substantial ground for difference of opinion,” and (3) an immediate appeal-“may materially advance the ultimate termination of the litigation.” 28 U.S.C.' § 1292(b). Interlocutory appeal is not a “vehicle to provide early review of difficult rulings in hard cases.” German v. Fed. Home Loan Mortg. Corp., 896 F.Supp. 1385, 1398 (S.D.N.Y.1995). Only “exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 475, 98 S.Ct. 2454, 2461, 57 L.Ed.2d 351 (1978). DISCUSSION Defendant’s Rule 59 motion assigns error to a number of the Court’s charges to •the jury, ie., it argues that the verdict was reached under incorrect legal standards, including the ATA’s causation and scienter standards, and as a result of the improper application of a pretrial sanctions order. It also argues that the Court made certain evidentiary rulings in error and that it was prejudiced the structure of the trial. Defendant’s Rule 50 motion, which of course challenges the sufficiency of the evidence presented in this case, is almost entirely focused on demonstrating that plaintiffs have failed to meet the legal standard that defendant argues is correct, as opposed to the one that Judge Gershon, to whom this case was previously assigned, and I have held applicable. I have therefore assessed the sufficiency of the evidence at trial under the correct legal standards. Another problem with defendant’s Rule 50 motion is that it begins with, and heavily rests upon, the unsupported assertion that “[e]ach of the banking services that Plaintiffs placed at issue must be evaluated separately to determine if it provides an evidentiary basis for the elements of proof required by the ATA.” Defendant then proceeds to analyze separately the financial services it provided to senior Hamas leaders, the financial services it provided to Hamas-controlled charities, and the financial services it provided to the Saudi Committee, without ever addressing the collective weight of all of these forms of support as evidence of either proximate causation or scienter. As did the jury, I reject this focus on the trees over the forest. For the following reasons, defendant’s Rule 50 motion is granted in part and denied in part, and defendant’s Rule 59 and § 1292(b) motions are denied. I. Sanctions Order A. Background Before trial, Judge Gershon imposed sanctions on defendant for its failure to comply with a prior discovery order compelling production of key account records, despite the fact that its objections based on foreign bank secrecy laws had been considered and overruled. See generally Linde, 269 F.R.D. 186 (the “Sanctions Order”). Defendant argues that I erred in applying those sanctions too broadly, and in declining to reconsider them in light of a brief filed by the United States Solicitor General in connection with defendant’s unsuccessful interlocutory appeal. The Sanctions Order sets forth the history of discovery in this action in great detail, but as is most relevant here, defendant refused to produce full account records for its customers in Lebanon and the Palestinian Territories (Gaza and the West Bank). Defendant admitted that it maintained accounts for 11 individuals or entities that were designated as FTOs, SDTs, or SDGTs during the relevant time period, but refused to specify the identity of these account holders. Defendant produced full account records for only one account, the Beirut account of Osama Hamdan. Osama Hamdan is a spokesman for and leader of Hamas, designated as a SDGT by OFAC in 2003. Several transfers into his Arab Bank account in Beirut explicitly listed “Hamas” as the beneficiary party. See, e.g., Linde, 269 F.R.D. at 197-98. Even assuming his account was among the 11 to which defendant admitted, there remain at least 10 of defendant’s accountholders who were admittedly OFAC-designated terrorists, but whom defendant refused to identify, much less produce their full account records. In imposing sanctions, Judge Gershon found that defendant had “intentionally failed to meet its production obligations.” Id. at 197. She also found, with respect to defendant’s claim that it would face criminal prosecution in Jordan if it complied with its discovery obligations, that “there is nothing in the record indicating that defendant faces a real risk of prosecution.” Id. There can be no question that defendant’s violation of Judge Gershon’s production order was intentional. Defendant may or may not have had a good faith basis for arguing that it was not obligated to produce the records in the first instance (in reliance on local bank secrecy laws), but once Judge Gershon rejected that argument and ordered the records produced, defendant made the deliberate decision to disregard that Order. I note also that, as demonstrated below, the circumstantial evidence at trial demonstrated that defendant’s reliance on local law was, in all likelihood, a convenient pretext for the non-production of doeu-ments that would have definitively answered the question as to defendant’s knowledge that it was helping to finance Hamas. Judge Gershon entered the Sanctions Order in an effort to mitigate the effects of defendant’s non-production of this highly probative evidence. The Sanctions Order had two aspects. First, it provided for a permissive adverse inference instruction as follows: [The jury] may, but is not required to, infer: (1) that defendant provided financial services to organizations designated by the United States as Foreign Terrorist Organizations, and to individuals affiliated with the FTOs; (2) that defendant processed and distributed payments on behalf of the Saudi Committee to terrorists, including those affiliated with named terrorist organizations and those who are unaffiliated, their relatives, or representatives; and (3) that defendant did these acts knowingly and purposefully. Linde, 269 F.R.D. at 205. This instruction was given both near the end of plaintiffs’ case and as part of the final jury charge. (The Court modified the wording slightly, although not materially, because after the Sanctions Order was issued, the focus of the trial was narrowed to Hamas and alleged violations of 18 U.S.C. § 2339B, a statute that requires only knowing conduct.) Second, the Sanctions Order restricted defendant’s ability to submit evidence of, or argue, certain facts that would likely have been illuminated by the withheld documents and testimony. It provided: The Bank must be precluded from making any argument about its state of mind that would find proof or refutation in the withheld documents. Defendant is entitled to rely on the documents it did produce to make its case that it did not have the required state of mind. In addition, defendant can argue to the jury that it had no knowledge that certain accountholders, whose records have been produced, were terrorists. But it cannot argue that it had no knowledge a certain Bank customer was a terrorist if it did not produce that person’s complete account records. Id. at 204. Thus, the Sanctions Order permitted defendant to make arguments about its intent as to the account for which it produced full records, the account of Osama Hamdan in Lebanon, but it precluded defendant from arguing that it did not know that other customers were terrorists. On the other hand, it did not direct the jury to find that defendant had such knowledge; it left plaintiffs with the burden of proving defendant’s knowledge. It is clear from her decision why Judge Gershon chose these particular sanctions. This extensive circumstantial evidence strongly suggests that the withheld records would have shown what defendant knew about the Hamas connections of its customers, which means that defendant’s invocation of bank secrecy kept the most direct inculpatory evidence from the jury, as Judge Gershon predicted. For example, the evidence at trial demonstrated that defendant’s policies required customers to provide photo identification when opening an account or receiving cash over the counter and that defendant would retain a photocopy of that identification. Thus, the withheld records would likely have removed any need to speculate about whether “Ahmad Ismail Yasine” was, in fact, Sheikh Yassin — one or more people at the Bank were looking right at this person, and made a copy of his photograph identification. The same would be true of the account records for other alleged Ha-mas leaders who received transfers from Yousef El-Hayek. In all such cases, the withheld records would have shown the volume, amount, timing, and sender and recipient information for transfers that were not routed through New York. Moreover, as Judge Gershon noted, there were significant shortcomings in defendant’s production of records related to Saudi Committee payments. See Linde, 269 F.R.D. at 198. For instance, documents that defendant withheld as the “private account information” of Saudi Committee beneficiaries may have included photo identification of individuals who plaintiffs contend were terrorists. Nothing could be more probative as to the presence, or absence, of defendant’s knowledge as to with whom it was dealing. The Sanctions Order was an effort to “level the playing field” by replacing the withheld evidence with jury instructions and trial rules intended to put plaintiffs in a position comparable to that which they would have occupied had defendant complied with the Court’s orders to produce, while attempting to achieve a balance that stopped short of striking defendant’s answer or instructing the jury that the element of knowledge must be deemed proven. However, in hindsight, it seems to me that the Sanctions Order fell short of accomplishing even those modest goals. B. The Effect of the Permissive Inference In light of the evidence that was adduced at trial even without the withheld documents, both by plaintiffs and defendant, it is now apparent that the permissive inference jury instruction had far less of a detrimental effect on defendant’s case than defendant contends. As a practical matter, it was effectively lost in the nearly seven weeks of trial proceedings. It took only a moment to mention in plaintiffs’ lengthy case and was buried in the lengthy final charge, although plaintiffs of course referred to it in their closing. In any event, the verdict was based on volumes of damning circumstantial evidence that defendant knew its customers were terrorists. Consider, for example, the compelling circumstantial evidence that plaintiffs were able to adduce — -despite the withheld documents — relating to an Arab Bank account held by Sheikh Ahmed Ismail Hasan Yas-sin, a founding member and senior leadér of Hamas. ' He was first designated as a SDT by the United States in 1995, and was described as the “[flounder and chief ideological figure of HAMAS.” He was designated as a SDGT in 2003. In issuing that designation, the United States government described Yassin as “the head of HAMAS in Gaza” and stated that “he maintained] a direct line of communication with other HAMAS leaders on coordination of HA-MAS’s military activities.” He was killed by Israel in 2004. The evidence showed that the wheelchair-bound Yassin, a man with a highly distinctive appearance, was well-known as a Hamas leader both internationally, and particularly in the Palestinian Territories, during the relevant time period; indeed, he could fairly be described as the face of Hamas. Sheikh Yassin was also, according to substantial circumstantial evidence, an Arab Bank customer. That circumstantial evidence begins with the wire transfer from Yousef El-Hayek in Lebanon for $60,000 — which, because it was routed through defendant’s New York branch, was produced — to a beneficiary named “Ahmad Ismail Yasine.” The transfer went to an account numbered 36444 in Arab Bank’s branch in Gaza. As discussed in more detail above, El-Hayek also initiated and received wire transfers, routed through New York, to and from other accounts at Arab Bank held in names of (or similar to) Hamas leaders. This evidence of transactions that seem to have involved known Hamas leaders certainly is relevant to defendant’s culpability for those transfers themselves. But its cumulative effect is even greater, in light of the possibility that any given transfer was not to a designated individual, but to someone with a similar name. In other words, for example, transfers from El-Hayek to accounts likely held by Ha-mas leaders are significant circumstantial evidence that the recipient of the transfer from El-Hayek to “Ahmad Ismail Yasine” was made to the Sheikh Yassin. As if that were not enough evidence that Yassin was defendant’s customer, plaintiffs showed the jury an interview on a Bahrain web forum with Abd al-Azis al-Rantisi, another founding member of Hamas who was also killed by Israel in 2004, who expressly called for donations to an Arab Bank account matching that of Sheik Yas-sin. This is compelling evidence that Sheikh Yassin was among the 10 or more accounts of designated terrorists for which defendant refused to produce documents. In addition to the circumstantial evidence discussed above, defendant’s decision to argue that its obligations began and ended by screening transactions against the OFAC list was completely undermined by the testimony of its own former employee. Defendant’s counsel emphasized this theory of the case both in his opening and in his closing. Defendant argued,'for example, that [t]here is no international banking standard that requires banks to do more than clear the transactions through the OFAC list in the United States of America. There is no need to check the Internet or do. independent research by banks in order to figure this out. They úse the OFAC list. That’s the unrebut-ted testimony of the only banking expert that we had in this case. This theory, the central tenet of the Bank’s defense, was myopic. It allowed the possibility that a well-known Hamas figure could enter the Bank, be recognized as such by every employee there, and yet, if his name did not yet show up on an OFAC list, the Bank not only could, but would be required to treat him like any other non-terrorist customer. This theory not only tolerated willful blindness — it mandated it. It is therefore no wonder that in making its “OFAC list-only” argument to the jury, defense counsel made no mention- at all of the testimony at trial of its own employees, who utterly rejected it — like that then-head of U.K. compliance, Mr.- Blaekmore, who said that if the words “martyrdom operation” showed up as a payment designation, he “would never in a million years have dealt with a payment order such as” that, or that of their compliance director, Mr. Dabbour, who testified that: “[I]f upon discovering an unusual transaction by — by one of our customers as part of the investigation in the account of our customer, we might look to see if there is any information available in the public domain. And that would be part of the investigative process.” It may be that defense counsel did not address this testimony in his lengthy closing argument because there was no way to explain it within his OFAC list-only argument. But it left an enormous gap in defendant’s central theory, and plaintiffs thoroughly exploited it. This failing in defendant’s case had nothing to do with the brief instruction to the jury under the Sanctions Order and, in my view, it east a much bigger shadow over defendant’s case than did the instruction. Finally, any prejudice to defendant from the permissive inference instruction in the Sanctions Order was also greatly overshadowed by the testimony of defendant’s expert, Dr. Milton-Edwards, which backfired in spectacular fashion. I have to assume that the jury was as surprised as I was when, after testifying on direct examination that she had visited almost all of the Palestinian charities for a prolonged period and had never seen any pro-Hamas literature, and therefore had concluded that they were not in league with Hamas, it came out on cross-examination that she could not read Arabic. She apparently based her opinion on her lack of encountering any pro-Hamas literature written in the Queen’s English. And the way it came out on cross-examination made it seem like she, and defendant as the party who had proffered her, had attempted to conceal the lack of basis for her opinion on direct testimony by not drawing the teeth on this point — such as when plaintiffs showed her a photograph bearing the words “Islamic Resistance Movement, Hamas” (taken from her own promotional video). By that point in the trial, I had seen the word “Hamas” in Arabic so many times that I immediately recognized it, and I suspect some of the jury may have as well. Yet the expert had to be prompted before she recognized it, and it only then came out that she could not read Arabic. This was the most dramatic, but not the only, incident of friendly fire directed at the Bank by Dr. Milton-Edwards. As noted above, her testimony that the charities at issue were not Hamas affiliates was directly contradicted by what she had written in her book about Hamas. Her response to being confronted with that was flippant. She was similarly flippant when her knowledge of Hamas was tested by asking her to identify a picture of Salah Shehadah, the founder of the al-Qassam Brigades. She said she was unable to identify him because of the “whole big beard phenomenon,” suggesting that all terrorists look alike to her. When a party calls an expert witness, it essentially vouches for her expertise. The jury knows that these witnesses are prepared by the lawyers and it evaluates a party’s case in conjunction with evaluating the expert’s testimony. A reasonable disagreement with a point that an expert expresses does not necessarily doom the proponent’s case. But when an expert is profoundly careless, there is a risk that the jury will attribute that' carelessness to the proponent, not just the expert. In short, given the abundance of circumstantial evidence in plaintiffs’ case showing that defendant either had or deliberately ignored evidence that it was dealing with Hamas operatives, coupled with the miscues in defendant’s theory and evidence, I do not believe that thé modest permissive inference instruction played a very large, if any role, in the jury’s verdict. C. The Effect of the Preclusion Order With respect to the preclusion aspect of the Sanctions Order, it was applied in a way that allowed defendant to present ample evidence supporting its “OFAC-only” and “routine banking practice” defenses. In an effort .to avoid transforming it into that which Judge Gershon expressly did not intend — a dispositive sanction — the net effect was that defendant was, in fact, allowed to introduce extensive evidence and argument that it did not know that its customers were terrorists. Indeed, aside from an effort to raise doubts about the responsibility of Hamas for the 24 attacks (which comprised about one-third of the trial), virtually all of defendant’s evidence (and its cross-examinations of plaintiffs’ witnesses) was aimed at demonstrating its lack of knowledge that its customers were terrorists. As one commentator noted, “the jury heard evidence from both sides on Arab Bank’s knowledge or ignorance of its customers and their financial transactions.” David L. Hall and Claire Coleman, Outside Counsel, Banking and Bombs: What the ‘Linde’ Verdict Portends, New YoRK Law JouRnal (October 15, 2014). In opening, closing, and at every possible opportunity, defendant hammered the point that only a few of the many individuals identified by plaintiffs as Hamas leaders or operatives were designated as terrorists by the United States, the European Union, or United Nations. T