Aadel Collection
Cyrus Elahi case. Findings of Fact and Conclusions of Law
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________ FILED
DARIUSH ELAHI, individuafly and as DEC 202000
next-of-kin and representative of the u.s. District Court
Estate of Cyrus Elahi, District of Columbia
Plaintiff, Civil Action No. 99-2802 (JHG)
V.
THE ISLAMIC REPUBLIC OF IRAN
and THE IRANIAN MINISTRY OF
INFORMATION AND SECURITY,
Defendants.
FiNDINGS OF FACT AND CONCLUSIONS OF LAW
This is an action for wrongful death brought by Dariush Elahi, 1 the brother of
Cyrus Elahi, a United States national, who, before he was killed on October 23, 1990 in
Paris, France, was a former university professor and a dissident of the Iranian regime.
The Islamic Republic of fran and the Iranian Ministry of Information and Security are
named as defendants for ordering the killing of Cyrus Elahi in an act of state-sponsored
assassination. Jurisdiction in this case is founded upon those provisions of the Foreign
Sovereign Immunities Act of 1976 (“FSIA”), as amended, 28 U.S.C. § 1602-1611, that
grant jurisdiction over foreign states and their officials and agents and that create federal
1 Plaintiff, Dariush Elahi, is a naturalized United states citizen and is the administrator of
his brother's estate. Dariush Elahi brings this action as administrator of Cyrus Elahi's estate and
in his own right and on behalf of decedent's two other siblings.
AA0000 86
causes of action for personal injury or death to American nationals resulting from state-
sponsored terrorism.
Defendants have failed to enter an appearance in this lawsuit, notwithstanding the
fact that service of process was made upon them in accordance with the statutory
procedures. See 28 U.S.C. § 1608(a)(4). 2 On August 14, 2000, pursuant to 28 U.S.C. §
1608(e) and Fed. R. civ. . 55(a), the court entered an order of default against the
defendants. Before the court may enter a judgment by default in a specific monetary
amount against the defendants, the FSIA provides that the plaintiff “establish [ ] his claim
or right to relief by evidence that is satisfactory to the court.” 28 u.s.c. § 1608(e). 3
2 Service of Process was accomplished on February 20, 2000, with the assistance of the
Swiss Embassy in Tehran, the United States' protecting power in the Islamic Republic of Iran.
This Court did not receive any response from the defendants, either through counsel's entry of
appearance, or through a diplomatic note.
This Court takes judicial notice of the fact that the Islamic Republic of Iran is an
experienced litigant in the Unites States federal court system in general and in this Circuit in
particular. See, e.g., Foremost-McKeeson v. Islamic Republic of Iran, 905 F.2d 438 (D.C. Cir.
1990); Berkovitz v. Islamic Republic of Iran, 735 F.2d 329 ( 9 th Cir. 1984); McKeel v. Islamic
Republic of Iran, 722 F.2d 582 ( 9 th Cir. 1984).
3 Congress intended this provision to afford the same procedural protections to foreign
states that Rule 55(e) of the Federal Rules of Civil Procedure gives to the United States. See De
Letelier v. Republic of Chile, 488 F. Supp. 665, 667 n. 2 (D.D.C. 1980); Commercial Bank of
Kuwait v. Rafidain, 15 F.3d 238, 242 (2nd Cir. 1994). Neither 1608(e) of the FSIA or Rule 55(e)
“relieves the sovereign from the duty to defend cases and to obey court orders.” Rafidain, 15
F.3d at 242. However, before judgment can be entered, the plaintiffs must put forth satisfactory
evidence as to each element of their claim. Compania Interamericana Export-Import v.
Compania Dominicana De Aviacion, 88 F.3d 948, 951 (11th Cir. 1996).
2
Accordingly, on November 8 and 9, 2000, the Court conducted a non-jury trial 4 at which
the plaintiff presented the testimony of seven witnesses: Kenneth Roger Timmerman,
Executive Director, Foundation for Democracy; Ladan Boroumand, Ph.D.; Jacques S.
Boedels, Armand, Boedels & Associates; Dariush Elahi; Jerome S. Paige, Ph.D.; Patrick
J. Clawson, Ph.D.; and Manouchehr Ganji, Secretary-General, Flag of Freedom
Organization. Documentary evidence consisting of 106 exhibits also was introduced in
support of plaintiff's claims. Because Iran has presented no defense, the Court will
accept as true the plaintiff's uncontroverted evidence. See Higgins v. Islamic Republic of
Iran, No. 99-377 (D.D.C. Sept. 21, 2000) (Kollar-Kotelly, J.); cf Alejandre v. Republic
of Cuba, 996 F. Supp. 1239, 1243 (S.D. Fla. 1997) (accepting as true the plaintiff's
“uncontroverted factual allegations”).
This Court has engaged in a systematic review of the evidence presented by the
plaintiff and the legal issues raised by plaintiff's claim for relief. Upon the evidence
adduced at trial, from which the following facts are found pursuant to Fed. R. Civ. P.
52(a), the Court concludes that, as required by 28 U.S.C. § 1608(e), the plaintiff has
“establish{edj his claim or right to relief by evidence that is satisfactory to the court.”
Accordingly, judgment shall be rendered in favor of the plaintiff as more fully set forth
4 This procedure has been followed in prior actions brought by victims (or the next-of-kin
of victims) of terrorist acts sponsored by the Islamic Republic of Iran. See Flatow v. Islamic
Republic of Iran, 999 F. Supp. 1, 6 (D.D.C. 1999); Cicippio v. Islamic Republic of Iran, 18 F.
Supp.2d 62, 67 (D.D.C. 1998); Anderson v. Islamic Republic of Iran, 90 F. Supp.2d 107 (D.D.C.
2000); Eisenfeld v. Islamic Republic of Iran, 2000 U.S. Dist. LEXIS 9545 (D.D.C. July 11,
2000); Higgins v. Islamic Republic of iran, No. 99-377 (D.D.C. Sept. 21, 2000).
3
below.
FINDINGS OF FACT
The defendant, the Islamic Republic of fran (“fran”), is a foreign state that was
founded in 1979 by Ayatollah Khomeini following the overthrow of the prior
government of the Shah of Iran. In 1989, after the death of Ayatollah Khomeini,
All-Akbar Hashemi Rafsanjani became President and remained in that position
into the 1990's. The current President of Iran is Mohammed Khatemi.
2. The United States Department of State has designated Iran as being a leading
sponsor of terrorism for over a decade. fran's direct support of terrorist activities
has prompted the United States to suspend diplomatic relations, impose trade
restrictions, and participate in the international embargo of the country. See, e.g.,
Iran and Libya Sanctions Act of 1996, Pub. L. 104-72, 10th Cong., 2d Sess. (Aug.
5, 1996), 110 Stat. 1541; 31 C.F.R. § 596.201 (prohibiting exports and sales to
Iran). President Clinton recently reaffirmed and renewed sanctions against Iran
when on March 15, 2000, he issued a Notice continuing the “national emergency”
with respect to Iran “ [ b]ecause the actions and policies of the Government of
Iran,” including “its support for international terrorism,” continue to “threaten the
security, foreign policy and economy of the United States.” Exhibit 15.
3. Iran uses several different organizations to carry out its pattern of terrorist
activities. One of these organizations is the defendant Ministry of Information
4
and Security (“MOIS”), the Iranian intelligence service. 5 With approximately
30,000 employees, MOIS is the largest intelligence agency in the Middle East and
has an approximate annual budget of between $100-$400 million. See Anderson,
90 F. Supp.2d at 112-13 (finding MOIS's approximate annual budget between
$100-$500 million). The United States Department of State has concluded that
Iranian intelligence services facilitate and direct terrorist attacks, including attacks
against regime opponents living abroad. Moreover, this policy is conducted with
the “approval of the highest levels of the Iranian regime. .“ United States
Department of State, Patterns of Global Terrorism: 1991, April 1992, at 30;
Exhibit 3.
4. At the time of the events at issue in this case, the Iranian Minister of Intelligence
and head of MOIS was Ayatollah Fallahian. As explained by Dr. Clawsón,
Minister Fallahian actively participated in the creation of MOIS and was the most
important decision maker within the organization.
5 fran also operates in the Middle East through at least three surrogate organizations that
receive Iranian funding: Hezbollah, a Lebanese Shiite organization; Hamas, or Islamic
Resistance; and the Palestinian Islamic Jihad. The Court notes that previous lawsuits brought by
victims (or the next-of-kin of victims) of Iranian sponsored terrorism have involved terrorist
actions by these organizations. See, note 4, supra.
6 Dr. Patrick Clawson, Director of Research at the Washington Institute for Near East
Policy and an expert on the Near East, testified that when this statement first was issued by the
Department of State, “there was considerable debate. . . about this judgment. . . .“ However, as a
result of additional information that has emerged from Iran, Dr. Clawson opined that “this
statement is now very widely accepted by Iran watchers and is no longer at all controversial.” Tr.
250 (Clawson).
5
5. Individuals implicated in the killing of Cyrus Elahi confirmed, under oath, to
French authorities that Minister Fallahian was involved in ordering the killings of
Iranian dissidents in Paris. Exhibit 58, p. 4; Exhibit 59, p. 110. German
prosecutorial authorities, moreover, have issued a warrant for Minister Fallahian's
arrest for ordering the 1992 assassination of Iranian Kurdish dissidents in
Germany. In a 1992 interview on Iranian television, Minister Fallahian discussed
MOIS' success in eliminating opponents of the regime, stating: “{W]e track them
abroad too. .. . Last year we succeeded in striking fundamental blows to their top
members.” Exhibit 74; Tr. 341 (Ganji); Exhibit 45; Exhibit 46.
6. Following the establishment of the Islamic Republic of Iran, a number of
organizations were formed outside the country in opposition to the clerical
government. Mr. Timmerman, an expert on the Iranian government's sponsorship
of terrorism, identified several of these opposition groups: the Flag of Freedom
Organization, founded by Dr. Manoucher Ganji, the former Minister of Education
in the Shah's regime, and his assistant, Cyrus Elahi; the Kurdish Democratic Party
of Iran, which advocates a secular democracy for Kurds living in Northern Iran;
the National Council of Resistance, which is dominated by the People's
Mojahedin of Iran, an allegedly Marxist organization, based in Turkey and Iraq;
the Constitutional Monarchist Organization; and the National Resistance
Movement, organized by the exiled former Iranian Prime Minister Shahpour
6
f
Bakhtiar, and his deputy Abdolrahman Boroumand, who, according to Kenneth
Timmerman, were later both assassinated by agents of the Iranian government.
7. According to Dr. Clawson, the Iranian government sought to eliminate any
effective opposition to the clerical regime by engaging in the widespread
assassination of dissidents both within Iran and abroad. Tr. 235 (Clawson). As
explained by Mr. Timmerman, the Iranian government was concerned that
Iranians living in exile would coalesce around a single opposition leader and
become a threat to the regime. Mr. Timmerman described the pattern of terrorism
and assassination undertaken by the Islamic Republic as being to “decapitate the
opposition.” Tr. 39 (Timmerman). 7
8. According to Dr. Clawson, the Iranian government's initial campaign of
assassinations proved successful and, accordingly, the clerics consolidated their
power in Iran. A renewed concentration of assassinations began.in 1989
following the end of the Iran-Iraq war and the death of the Ayatollah Khomeini.
At that time, Mr. Rafsanjani assumed the presidency of Iran and in order to
solidify his power, the government “redoubled its activities” to eliminate
7 As part of his study and investigation of the Iranian government's campaign against
opponents of the regime, Mr. Timmerman compiled a chronological list of specific Iranian
terrorist attacks against dissidents. This document, which was submitted into evidence as Exhibit
29, is persuasive evidence of the pattern of assassinations instituted by the Iranian government to
silence its critics. Mr. Timmerman testified that in those cases of assassination he had
investigated, the Iranian government consulate or embassy was directly involved in providing
safehouses, automobiles, money, passports, and escape routes to the perpetrators of these
offenses.
7
opponents of the regime. Tr. 235 (Clawson). Dr. Clawson explained that based
upon his research, he determined that “Mr. Rafsanjani devoted a lot of attention, a
lot of resources” to directing these assassinations and evidence of direct Iranian
involvement in those assassinations comes “from numerous accounts. . . just how
much priority Mr. Rafsanjani placed on this campaign.” Tr. 235 (Clawson). Dr.
Clawson testified that there were a “great many killings” during this campaign,
and Iran “assassinated some of the top leaders of the major [ opposition]
organizations.” Tr. 237, 240-4 1 (Clawson).
9. The scope of the terrorist activities launched against those organizations opposed
to the current Iranian government and others has been worldwide. The testimony
and documentary evidence introduced at trial, including reports by the United
States and foreign governmental authorities, human rights groups, and the world
press indicate that fran and MOIS have authorized, sponsored, and directed the
assassination of critics and opponents of the Iranian regime in countries
throughout the world. Criminal investigations in both France and Germany and
the decisions of the courts of those countries have found evidence of direct
involvement by the government of fran, MOIS, and Minister Fallahian in the
killings of opponents of the Tehran regime. Exhibits 58, 59 (France); Exhibits 18,
46,47,48 (Germany). The Parliamentary Human Rights Group of the Palace of
Westminster in Great Britain has documented the Iranian government's “use of
8
-t
terrorism as an adjunct to foreign policy.” Exhibit 17, P. 5. Amnesty
International has issued reports describing Iran's use of torture, terrorism, and
possible assassination as instruments of state policy. Reports in the world press
have further documented the actions of the Iranian government in oppressing its
political opponents.
10. The Flag of Freedom Organization (‘FF0”) is an opposition group, founded by
Dr. Manoucher Ganji, a former Professor of International Law at Tehran
University and Minister of Education under the Shah's regime. The FF0 is a
democratic movement whose stated aims and purposes are the realization of the
rights and freedoms of the Iranian people and the establishment of a pluralistic
and parliamentary democracy in Iran. Through the operation of a radio station in
Egypt and the distribution of videotapes and printed materials, the FF0 provided
news and information worldwide about events in Iran and the suppression of
individual rights and free speech within that country. The FF0 also organized
resistance networks within Iran and in Turkey, which borders on fran and has a
large Persian community. The Tehran regime was extremely concerned about the
FF0' s radio broadcasts into Iran, and sought to stop the transmission.
11. Dr. Ganji' s key assistant in building the FF0 was Cyrus Elahi, whom Dr. Ganji
had known for many years. Dr. Elahi was born in Iran in 1943. He came to the•
United States in 1958 with his mother and three siblings to join his father who
9
previously had emigrated to the United States to pursue his medical education. In
1961, Dr. Elahi and his siblings became naturalized United States citizens. Cyrus
Elahi attended school in the United States and received his undergraduate degree
and his Ph.D. from American University in Washington, DC.
12. In the 1970's, Dr. Elahi returned to Iran. Dr. Elahi became an assistant professor
of political science at the National University in Tehran and, with Dr. Ganji,
participated in a “think tank” that submitted reports on Iranian economic, social,
and political developments to the wife of the Shah “in the hope of improving the
situation.” Tr. 274-75 (Ganji). When Dr. Ganji was named Minister of
Education, Dr. Elahi became his close advisor.
13. Following the Khomeini revolution in 1979, both Dr. Ganji and Dr. Elahi went
into hiding. A list of 200 individuals, including Dr. Ganji and Dr. Elahi, deemed
to be opponents and enemies of the new regime and calling for their arrest, was
posted in the mosques throughout Iran. According to Dr. Ganji, in addition to the
posting of this list, a Fatwa (religious edict) has been issued calling for Dr. Ganji's
death and both Dr. Ganji and Dr. Elahi understood that a similar edict was issued
for Dr. Elahi's assassination. 8
8 A Fatwa is an edict of a religious leader, authorizing a faithful Muslim to commit
murder, in this case, against certain opponents of the Iranian regime. Fatwas are not publicly
distributed; hence, the fact that one has been issued against a specific person must be gleaned
indirectly. The Fatwa issued against Dr. Ganji (Exhibit 105), and introduced into evidence at the
hearing in this case, was obtained by Dr. Ganji from sources within the Iranian government.
10
14. After the revolution, Dr. Elahi hid Dr. Ganji in his home and, then, assisted Dr.
Ganji in fleeing Iran. After aiding Dr. Ganji in his escape, Dr. Elahi and his wife
fled the country shortly thereafter. Both Dr. Ganji and Dr. Elahi settled in the
United States. For several years, Dr. Elahi lived in Texas, California, and
Michigan. At that time, Dr. Elahi's sister was attending the University of
Michigan, and he became an associate professor of political science at Michigan
State University, in part, to be close to her. Later, Dr. Elahi left his teaching
position to join Dr. Ganji, who was hen living in Dallas, Texas, to assist him in
running an educational and cultural foundation.
15. In 1985, Dr. Ganji relocated to Paris to work with other Iranian exiles in seeking a
free and democratic Iran. In mid-1986, Dr. Elahi joined Dr. Ganji in Paris and
both of them established the Flag of Freedom Organization to actively promote
the establishment of a pluralistic society in fran.
16. In October 1990, French authorities informed Dr. Ganji that they had uncovered a
plan to assassinate him, and, at their suggestion, he left Paris and went to Egypt.
At the time, Dr. Elahi was in Munich, Germany. However, he returned to Paris
and on the morning of October 23, 1990, as he was leaving his apartment
building, Dr. Elahi was shot eight times and killed by an assassin using a gun with
a silencer. Exhibit 59, p.82. Although Dr. Elahi normally did not leave his
apartment building unaccompanied, on the morning he was assassinated, he was
11
delayed and missed the colleague whom he customarily would meet to accompany
him to the FF0 offices.
17. As the attorney for the Elahi family in France, Mr. Boedels reviewed the
investigatory reports and the evidence compiled by Jean-Louis Bruguiere, Senior
Examining Magistrate of the District Court of Paris. Exhibits 58, 59. Judge
Bruguiere opened two files on the Elahi assassination, the first for his murder and
the second for “association of wrongdoers,” which is equivalent to a charge of
conspiracy. Tr. 120 (Boedels). Judge Bruguiere's inquiry into Dr. Elahi's death
implicated two Iranian nationals living in Paris, Mojtaba Mashadi and Hossein
Yazdanseta.
18. According to the French indictment of Mr. Mashadi, handed down by the
Appellate Court of Paris, Second Criminal Panel, a gun and a silencer were found
on the premises of Dr. Elahi's apartment building.
19. Under interrogation, Mr. Yazdanseta confessed to having been part of a plot to
assassinate Iranian political dissidents in Paris. Mr. Yazdanseta stated under oath
to Judge Bruguiere that Mr. Mashadi had stated that he had been entrusted in
Tebran with the organization of the assassination of Cyrus Elahi. Exhibit 58 at
11; Exhibit 59 at 96-99. According to Mr. Yazdanseta's sworn statement to Judge
Bruguiere, he had a conversation with Mr. Mashadi in July or August of 1993 at
Mr. Mashadi's home. During that conversation, Mr. Mashadi admitted that he
12
was the organizer of the operation to assassinate Cyrus Elahi, that a gun and
silencer had been given to him in Paris by Iranian contacts, and that he had
enlisted a Mr. Ohorbanifar to assassinate Cyrus Elahi, but that Mr. Ghorbanifar
had backed out at the last minute. Exhibit 59 at 97-99. According to Mr.
Yazdanseta's sworn statement, the assassination was then carried out by another
team of two or three men, but Mr. Mashadi had not given him any more
information how the assassination was carried out. In referring the indictment of
Mojtaba Mashadi to the Court of Assize of Paris, the Appellate Court of Paris
relied on, among other things, the fact that Mr. Yazdanseta stated under oath that
Mr. Mashadi had confided to him that he had been put in charge of organizing the
assassination of Cyrus Elahi. Exhibit 59 at 83.
20. Other witnesses testified that Mr. Mashadi was a MOIS agent in France and that
he had traveled to Iran to meet with Minister Fallahian and Minister Fallahian had
given orders to Mashadi to assassinate dissidents. Mr. Boedels testified to this
Court that Mr. Ghorbanifar had stated under oath to Judge Bruguiere that Mr.
Mashadi had told him that he had b n to Iran and met with Minister Fallahian.
According to the record of Mr. Ghorbanifar' s testimony under oath to Judge
Bruguiere, taken on April 11, 1995, Mr. Mashadi told Mr. Ghorbanifar that he had
been to Tebran in November 1989 and met with Minister Fallahianand other
members of MOIS. Mr. Mashadi told Mr. Ghorbanifar that he had been put in
13
charge of organizing the assassinati n of Dr. Ganji and several other dissidents
(but did not mention Dr. Elahi). This conversation took place upon Mr.
Mashadi's return from Tehran. Accbrding to Mr. Ghorbanifar, Mr. Mashadi told
him this in an attempt to gain his as istance in carrying out the assassination of Dr.
Ganji. Instead, Mr. Ghorbanifar re'v ealed the information to the French
authorities, who alerted Dr. Ganji td the threat.
21. Mr. Ghorbanifar also testified to Jucjge Bruguiere that in 1989, he accompanied
Mr. Mashadi to a meeting at the Orl r airport. Also present at this meeting,
according to Mr. Ghorbanifar, was Au Ahani, the Iranian Ambassador; Mr.
Anguizi, the manager of Iran Air; a 4 d a man identified as Bagher. Later,
according to Mr. Ghorbanifar, Mr. I ashadi identified Bagher as an agent of Iran.
22. Mr. Farhad Ghiasvand, an acquaint4ce of Mr. Mashadi, gave two sworn
statements to Judge Bruguiere. In tije sworn statement dated June 23, 1994, Mr.
Ghiasvand stated that he had met Mj . Mashadi in Tehran in 1989, and Mr.
Mashadi had told him that he was w rking for MOIS, and he had contact with
Minister Fallahian. Mr. Mashadi imbortuned Mr. Ghiasvand to assist him in
assassinating a Iranian dissident in P aris. Exhibit 59 at 101. In the sworn
statement dated January 10, 1994, Mr. Ghiasvand stated that Mr. Mashadi had
identified Dr Elahi as the target of tl e plot. Mr. Ghiasvand declined to•
participate. Exhibit 59 at 124. In bdth statements, Mr. Ghiasvand recounted that
14
he had a further discussion with Mr Mashadi in mid-1993, in which he reminded
Mr. Mashadi of the prior conversation. According to Mr. Ghiasvand, Mr.
Mashadi, threatened to “denounce [ him] to the police” and denied the prior
conversation. Exhibit 59 at 102, 124.
23. On December 29, 1993, Mr. Ali Reza Ghanaee Miandoab was questioned by the
French police. Mr. Miandoab stated that in December 1992, Mojtaba Mashadi,
whom he had known for about thirty years, had asked him whether he would
assist in the assassination of an individual named Shafa and Dr. Ganji. Mr.
Miandoab declined the request. According to Mr. Miandoab, Mr. Mashadi further
stated that he was acting on behalf of the Iranian intelligence and that he had
arranged for Mr. Ghorbanifar to kill Cyrus Elahi, but that he had backed out.
Finally, Mr. Mashadi stated to Mr. Miandoab that Iranian intelligence agents, with
whom he had contact in Iran, had been sent to Paris to carry out the assassination
of Cyrus Elahi. Exhibit 59 at 108.
24. The evidence gathered by Judge Bruguiere strongly indicates that the original plot,
as conceived by MOIS, was to assassinate a number of individuals opposed to the
Tehran regime, including Dr. Ganji, Dr. Cyrus Elahi, and others. Tr. 130
(Boedels). According to Mr. Boedels, who testified to this Court, Mr. Mashadi
importuned Mr. Yazdanseta and Mn Ghorbanifar to carry out the plot. Mr.
Mashadi offered Mr. Yazdanseta money to take the photograph of Dr. Ganji or
15
Cyrus Elahi and told him that he would be paid an additional sum if he would kill
the person so identified. Tr. 131 (Boedels). Mr. Mashadi also enlisted the
asssistance of Mr. Ghorbanifar. However, Mr. Ghorbanifar did not continue with
the conspiracy. Instead, he contacted the French secret service and provided
information to the French authorities. Mr. Ghorbanifar's revelations prompted the
French authorities to warn Dr. Ganji that his assassination was imminent.
25. In addition to testimony obtained through the interrogation of Messrs. Mashadi,
Yazdanseta, and Ghorbanifar, Judg Bruguiere also obtained answers to written
questions of a high ranking Iranian 1efector, who had been detained by German
authorities. This defector, Mr. Mesbahi, confirmed to Judge Bruguiere that the
assassination of Dr. Elahi was orga4ized and executed by Iranian government
officials. Tr. 129 (Boedels); Exhibit 59 at 84.
26. Messrs. Mashadi and Yazdanseta were tried before the Paris Supreme Criminal
Court, and, in September 1996, they were convicted of conspiracy to commit
terrorist acts, including the planned assassinations of Dr. Ganji and Cyrus Elahi.
Mr. Mashadi was sentenced to seven years' imprisonment and Mr. Yazdanseta to
three years' imprisonment. Tr. 121 (Boedels). These convictions have been
upheld by the French appellate courts.
It stands uncontradicted that the murder of Dr. Elahi was an act of assassination
undertaken and directed by agents of defendant MOIS at the behest of defendant Islamic
16
Republic of Iran.
CONCLUSIONS OF I AW WITH RESPECT TO
JURISDICTIOJ4J AND LIABILITY
In the Antiterrorism and Effective L eath Penalty Act of 1996 (“Antiterrorism
Act”), Congress lifted the sovereign immu1 ity of foreign states for acts of state
sponsored terrorism. Pub. L. No. 104-132, Title II, § 221(a) (April 24, 1996), 110 Stat.
1241 cod fied at 28 U.S.C. § 1605(a)(7) (West 1997 Supp.). The Antiterrorism Act
specifically creates an exception to the immunity of those foreign nations officially
designated by the Department of State as terrorist states when that nation commits a
terrorist act, or provides material support and resources to an individual or entity that
commits such an act, resulting in the death or personal injury of a United States national.
28 U.S.C. § 1607(a)(7).
The stated purpose of the Antiterrorism Act is to deter terrorist acts against U.S.
nationals by foreign sovereigns or their agents and to provide for justice for victims of
such terrorism. See 110 Stat. 1214 (1996). Thus, by enacting the statute, Congress
manifested its intent that U.S. nationals who are “victims of terrorist states be given a
judicial forum in which to seek redress.” Daliberti v. Republic of Iraq, 97 F. Supp.2d 38,
50-51 (D.D.C. 2000). As explained by Judge Friedman in Daliberti: “Those nations that
operate in a manner inconsistent with international norms should not expect to be granted
the privilege of immunity from suit, that is within the prerogative of Congress to grant or
17
(
withold.” Daliberti, 97 F. Supp.2d at 52.
Because, as discussed below, this m tter comes within the state sponsored
terrorism exception to foreign sovereign imniunity, this Court has original subject matter
jurisdiction in this case. Pursuant to § 1 33 (a) of Title 28, the district courts “have
original jurisdiction without regard to amoilnt in controversy of any nonjury civil action
against a foreign state. . . as to any claim fd r relief in personam with respect to which the
foreign state is not entitled to immunity unc er sections 1605-1607 of this title or under
any applicable international agreement.” 9 U.S.C. § 1330(a). See Argentine Republic v.
Amerada Hes Shipping Coip., 488 U.S. 4 8, 434 (1989).
The Antiterrorism Act merely waive the sovereign immunity of state sponsors of
terrorism. To create a cause of action for vi ctims of terrorism, Congress enacted a
separate piece of legislation. Civil Liability for Acts of State Sponsored Terrorism, Pub.
L. No. 104-208, § 589, 110 Stat. 3009 (1996) (codified at 28 U.S.C. § 1605 note). The
legislation provides a cause of action again t a foreign state and its agents for any act
which would give a court jurisdiction under 1 28 U.S.C. § 1605(a)(7). See Flatow v.
9 The Court also has in personam jurisdi ion over the defendants. The Foreign Sovereign
Immunities Act provides that personal jurisdictipn over a defendant will exist where, as here, the
plaintiff establishes the applicability of an exception to immunity pursuant to 28 U.S.C. § 1605
and service of process has been accomplished p irsuant to 28 U.S.C. § 1608. 28 U.S.C. §
1330(b). Both of those requirements have been met here. See also Foremost-McKesson v.
Islamic Republic of Iran, 905 F.2d at 442 (“Pers ona1 jurisdiction under FSJA exists so long as
subject matter jurisdiction exists and service of has been properly made pursuant to 28 U.S.C. §
1608”). Venue appropriately lies in this district ourt because the federal venue statute provides
that actions against a foreign state and a state's gent or instrumentality may be brought in the
United States District Court for the District of Cplumbia. 28 U.S.C. § 139 1(f)(4).
18
islamic Republic of iran, 999 F. Supp. 1, 12-13(D.D.C. 1998). This provision is
commonly referred to as “Flatow Amendment”°
In order to establish subject matter jurisdiction and state a claim pursuant to the
FSJA, as amended by the Antiterrorism Act, 28 U.S.C. § 1605(a)(7), and the Flatow
Amendment, 28 U.S.C. § 1605 note, a claim must contain the following elements:
(1) that personal injury or death resulted from an act of torture, extrajudicial killing,
aircraft sabotage, or hostage taking; and
(2) the act was either perpetrated by a f reign state directly or by a non-state actor
which receives material support or r sources from the foreign state defendant; and
(3) the act or provision of material support or resources is engaged in by an agent,
official, or employee of the foreign state while acting within the scope of his or
her office, agency, or employment; and
(4) that the foreign state be designated as a state sponsor of terrorism either at the time
the incident complained of occurred or was later so designated as a result of such
act; and
(5) if the incident complained of occurred within the foreign state defendant's
territory, plaintiff has offered the defendants a reasonable opportunity to arbitrate
the matter; and
‘°Although this provision of the statute has been published as a note to 28 U.S.C. § 1605,
it has been interpreted as being an “independeni pronouncement of law.” Flatow, 999 F. Supp. at
12. In addition, section 1605(a)(7) and the Flatow Amendment are interpreted in pan materia.
See Flatow, 999 F. Supp. at 13.
19
(
(6) either the plaintiff or the victim was United States national at the time of the
incident; and
(7) similar conduct by United States agents, officials, or employees within the United
States would be actionable.
28 U.S.C. § 1605(a)(7) and 28 U.S.C. § 1605 note. Each of these requirements is
satisfied in this case, as detailed below or in other portions of this opinion. As earlier
noted, the plaintiff has “established his claim or right to relief by evidence that is
satisfactory to the Court.” 28 U.S.C. § 1608(e).
I. Extrajudicial Killing
The murder of Cyrus Elahi constitutes an extrajudicial killing. The state
sponsored terrorism exception to immunity expressly adopts the definition of
extrajudicial killing set forth in the Torture Victim Protection Act of 1991, Pub. L. No.
102-256, § 3(a), 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 note). 28 U.S.C. §
1605(e)(1). That Act defines an extrajudicial killing as:
a deliberated killing not authorized by a previous judgment pronounced by a
regularly constituted court affording all judicial guarantees which are recognized
as indispensable by civilized peoples Such term, however, does not include any
such killing that, under international law, is lawfully carried out under the
authority of a foreign nation.
Pub. L. No. 102-256, § 3(a). The murder of Cyrus Elahi fits within the definition of
extrajudicial killing. First, the uncontrovert d evidence introduced at trial demonstrated
that the assassination of Cyrus Elahi was a deliberate act. Second, Cyrus Elahi was not
20
afforded the judicial process contemplated by the statute. Third, as this Court stated over
twenty years ago, assassination is “clearly contrary to the precepts of humanity as
recognized in both national and international law.” De Letelier, 488 F. Supp. at 673. See
also Xuncax v. Gramajo, 886 F. Supp. 162 185 (D. Mass. 1995) (“ [ E]very instrument
and agreement that has attempted to define the scope of human rights has ‘recognized a
right to life coupled with a right to due process to protect that right.”) (citation omitted);
Forti v. Suarez-Mason, 672 F. Supp. 1531,, 1542 (N.D. Cal. 1987) (“The proscription of
summary execution or murder by the state ppears to be universal, is readily definable,
and is of course obligatory.”); RESTATEMEI T (THIRD) OF FOREIGN RELATIONS LAW OF
THE UNITED STATES § 702(c) (1986) (“A s ate violates international law if, as a matter of
state policy, it practices, encourages, or cor dones . . . the murder or causing the
disappearance of individuals.”).
II. Foreign State Actor or Provision of Material Support
Based on the unconverted evidence Introduced at trial, the Court is satisfied that
the murder of Cyrus Elahi was perpetrated y agents of MOIS acting at the direction of,
and in furtherance of the policies of, the Isl imic Republic of Iran. 1 ' As a result, both the
Islamic Republic of Iran and MOIS may be .held responsible under the FSIA for the
The definition of “foreign state” in the FSIA includes agencies and instrumentalities of a
foreign state. 28 U.S.C. § 1603(a), (b). See Fdremost-McKeeson, 905 F.2d at 446. Defendant
MOIS is an agency of the Iranian government. See Anderson, 90 F. Supp.2d at 112-113.
Accordingly, MOIS, as well as the Islamic Republic of Iran, is liable under the FSIA.
consequences of their actions. Indeed, in cases where the involvement of the Iranian
government in specific terrorist acts was niuch less direct and involved only the
provision of support and resources to terroi ist groups, liability was found to exist under
the FSTA. See Flatow, 999 F. Supp at 10 (holding Iran and MOIS liable for terrorist
bombing by Islamic Jihad, which resulted in the death of an American citizen); Eisenfeld,
2000 U.S. Dist. LEXIS 9545 at *1446 (fikiding Iran and MOIS liable for the death of
American citizen who was killed in terrorist bombing by llamas because Hamas received
material support from defendants).
III. State Sponsor of Terrorism
The Antiterrorism Act requires that he foreign state be designated as a state
sponsor of terrorism pursuant to Section 6(j) of the Export Administration Act of 1979,
50 U.S.C. App. § 2405(j). 28 U.S.C. § 16d5 note. The Export Administration Act calls
upon the Secretary of State to make a deter ination that a foreign state has “repeatedly
provided support for acts of international t rrorism and to notify the relevant coninittees
of both Houses of Congress, and to publish the determination in the Federal Register.”
50 U.S.C. App. § 2405(j).
The Islamic Republic of Iran has been designated a “state sponsor” of terrorism
pursuant to these provisions of the Export dministration Act continuously since January
1984. See Cicippio, 18 F. Supp.2d at 68. ee also 49 Fed. Reg. 47702 (Dec. 6, 1984).
Iran continues to be designated a state spoi sor of terrorism. 22 C.F.R. § 126.1(d); 31
22
C.F.R. § 596.201. See also U.S. DEPARTMENT OF STATE, PATTERNS OF GLOBAL
TERRORISM, 1999 (April 1, 2000).
IV. United States National
The FSIA requires that either the claimant or the victim be a “national of the
United States,” as the term is defined by the Immigration and Nationality Act, “when the
act of state sponsored terrorism occurred.” 28 U.S.C. § 1605(a)(7)(B)(ii).' 2 In this case,
Cyrus Elahi was a nationalized United States citizen at the time he was assassinated by
agents of the Islamic Republic of Iran and MOIS. 13 The claimant here, Dariush Elahi,
also is a naturalized United States citizen. hence, Dariush Elahi, as Cyrus Elahi's next of
kin and representative of Cyrus Elahi's est te, has properly brought this action under the
FSIA.' 4
12 The Immigration and Nationality Act Jefines the term “national of the United States” as
(a) a citizen of the United States, or (b) a person who, though not a citizen of the United States,
has permanent allegiance to the United States.” 8 U.S.C. § 1 101(a)(2).
‘ 3 Cyrus Elahi became a U.S. citizen in 961. A photocopy of Cyrus Elahi's passport was
admitted into evidence. Exhibit 53.
‘ 4 Because the murder of Cyrus Elahi oc urred in Paris, France — not in Iran — the fifth
element for coverage under the FSIA, see supra, addressing incidents within the foreign state's
own territory does not apply. See 28 U.S.C. § 605(a)(7)(B)(i).
The Flatow Amendment, 28 U.S.C. § 1605 note, adds the requirement that the liability of
foreign states and their officials and agents be comparable to that of the United States and its
agents, officials and employees. See supra (se' enth required element of cause of action under
state sponsored terrorism exception). There ca? be no serious dispute that if officials or agents of
the United States, while acting in their official ¶apacities arranged for and directed the
assassination of a critic of the United States go 1 ernment, they would not be immune from civil
suits for wrongful death. See U.S. Const. Amend. 5; Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388 (1971)F
23
CONCLUSIONS OF LAW WITH RESPECT TO DAMAGES
I. Count I —Wrongful Death
The FSIA, as amended, establishes a cause of action for wrongful death
proximately caused by an act of state sponspred terrorism — in this case the extrajudicial
killing of Cyrus Elahi. The statute provides, inter alia, that money damages, including
economic damages, solatium, pain and suffering, and punitive damages are available in
actions brought pursuant to the FSIA. 28 U.S.C. § 1605 note. Compensation may be
awarded to a decedent's heirs-at-law for both the economic and emotional losses that
result from the decedent's premature death due to acts of state sponsored terrorism.' 5 See
Flatow, 999 F. Supp. at 27-28; Eisenfeld, 2000 U.S. Dist. LEXIS 9545 at *16; Alejandre
v. Republic of Cuba, 996 F. Supp. 1239, 1249-50 (S.D. Fla. 1997).
A. Economic Damages
The economic losses flowing from a person's untimely death include the loss of
accretions to his estate. The evidence established that had Cyrus Elahi not been killed,
he could have continued to pursue his work with the Flag of Freedom Organization, or
he could have returned to the academic world to pursue a teaching career.
‘ 5 Recently enacted amendments to the FSIA allow plaintiffs in specifically designated
lawsuits against the Iranian government to recover an award of compensatory damages from
Iranian assets frozen by the United States government. See Pub. L. No. 106-386, § 2002(a)-(c)
(October 28, 2000). As counsel acknowledged, this lawsuit does not appear to come within the
provisions of the new legislation.
24
Which career path Cyrus Elahi would have chosen is not susceptible to precise
determination. Accordingly, the p1aintiff' economic expert, Jerome Paige, Ph.D.,
performed two separate calculations of lost income. The first calculation was based upon
the assumption that Cyrus Elahi would hav e returned to academia had he not been
assassinated. The second calculation assumed that Cyrus Elahi would have continued his
work with the Flag of Freedom Organization. For each of these of these assumptions,
Dr. Paige used a typical mean earnings approach for a similarly situated 47-year old
male. According to Dr. Paige's calculations; Cyrus Elahi's lifetime earnings would have
been $725,359 had he continued working for the Flag of Freedom Organization and
$967,626 had he returned to the academic world. Tr. 197-198 (Paige); Exhibit 100.
Although the evidence demonstrated that Cyrus Elahi could have returned to his
academic career, his true passion, and the one to which he fully devoted the last four
years of his life, was his work for the Flag of Freedom Organization. Accordingly, for
purposes of calculating economic losses, theCourt will assUmëthäfDr. Elahi would have
continued his work with the Flag of Freedom Organization and that the financial loss to
his estate resulting from his untimely death is $725,359, the lower of Dr. Paige's two
calculations. An award of this amount, theMfore, will be rendered to Cyrus Elahi's estate
for lost accretions.
In addition to these economic losses, Dariush Elahi, as executor of Cyrus Elahi's
estate, also incurred $14,676 in funeral expenses, which includes the cost of the funeral
25
in Paris, the burial plot in Maryland, the gr vestone, and the cost of travel to and from
Paris. The Court finds that these expenses ere appropriately incurred and should be
recovered as part of the compensatory damage award in this case.
B. Solatium
1. Legal Standards for Awardh g Solatium Damages
The statutory provision creating the cause of action for state sponsored terrorism
also permits solatium damages. 28 U.S.C. § 1605 note. A claim for solatium refers to
the “mental anguish, bereavement and grief resulting from the fact of decedent's
death [ .]” Flatow, 999 F. Supp. at 30. The loss of decedent's society and comfort is also
encompassed within solatium. Id. at 31. Solatium may include a claim for loss of a
sibling where the claimant proves a close emotional relationship with the decedent. See
Flatow, 999 F. Supp. at 30.
The testimony in this case established that Cyrus Elahi was the eldest of four
children and that he had twó brothers, Dariush (the administrator of his estate) and a
younger brother, and a sister. Cyrus Elahi's father was born in Iran, but came to the
United States in 1948 to pursue his medicaleducation. At the time, his wife and children
remained in Iran. Later, in 1958, the fami1y moved to the United States. In 1961, all of
the children became naturalized U.S. citizer s. Shortly thereafter, in 1962, Cyrus' mother
and father divorced.
Following his parents' divorce, CyruL the eldest, took care of his younger siblings
26
and, as described by his brother, Dariush, “assumed the role of friend, advisor,
confidante, father.” Cyrus Elahi also prov ded monetary support to the rest of the family,
including his mother and siblings. He helped to pay for the college education of his
siblings and, while Dariush was attending college at American University in Washington,
D.C., where Cyrus also taught, Dariush lived with his brother, and Cyrus placed all of his
money in a joint checking account for Dariush's use.
Because Dariush and Cyrus were closest in age, a special bond developed between
them. Prior to going to Paris to join Dr. Ganji, Cyrus Elahi discussed with Dariush the
anguish that he felt. Cyrus informed his brother that if he joined Dr. Ganji in Paris, this
would be the end of his marriage. Cyrus gave some of his personal effects to his brother
for safekeeping. After Cyrus Elahi joined Dr. Ganji in Paris, Cyrus continued to remain
in contact with his brother and would visit him in the United State at least twice yearly.
Dariush Elahi testified that his brother “would make it a point to come and visit me”
because, at the time, Dariush was in the midst of his medical trainIng and c6uld not travel
to Paris. Later, when his medical training was completed, Dariush visited his brother on
several occasions in Paris and, shortly before his assassination, in Germany.
The grief and anguish Dariush experienced as a result of the death of his brother,
Cyrus, which he relived during the hearing n this matter, was readily apparent during
his testimony. He stated, “I believe I was cl ser to him than I was to my father at any
time in my life.” Dariush Elahi also read in1 o the record a statement written by his
27
younger brother, who presently lives in California. That statement captures the strong,
emotional feelings that the members of the Elahi family had for Cyrus Elahi and the
exceptional loss they have experienced as a result of his death. Cyrus' younger brother
wrote as follows:
As our parents were divorced when the children were young, Cyrus being
the oldest child, adopted many of the father's responsibilities to his siblings. He
encouraged all of us to be and do better. He financially and emotionally
supported us. . . . He was always there for us. . . . These actions, combined with
[ his] optimistic nature, even in the face of sometimes sorry circumstances, carried
us forward individually and as a family. Given all the strengths and all he did and
how he loved us. .. . [ one] can onl imagine what a wonderful brother and central
hub to my family, including my mother, my father, and cousin (all of whom grew
up together in the same household), Cyrus was to us. My mother.. . . was
destroyed by Cyrus' assassination.
Not because he was my brother, but because of who he was, Cyrus was
very special and inspiring. He left a long trail of people who live — whose life he
positively touched, and he had so much more to offer....
Testimony about the mental anguish and grief experienced as a result of the death of a
loved one is sufficient to sustain a claim for solatium. See Flatow, 999 F. Supp. at 30. In
this case, Dariush Elahi testified about his deep feelings for his brother and the extreme
sorrow he and the Elahi family felt when they learned of their brother's violent death.
Moreover, as noted by Judge Lamberth in Flatow, the depth of a person's
suffering may not be totally manifested on the stand. As noted in Flatow, “in the long
term, the sudden death of a loved one may i nanifest itself as ‘a deep inner feeling of pain
and anguish often borne in silence.” Flatoi , 999 F. Supp. at 31 (quoting Connell v.
Steel Haulers, Inc., 455 F.2d 688 (8th Cir. 1972).
28
Individuals can react very differently even under similar circumstances; while
some sink into clinical depression ahd bitterness, others attempt to salvage
something constructive from their p rsonal tragedy. Such constructive behavior
should not be considered as mitigating solatium, but rather as an equally
compensable reaction, one in which ' courage to face their own mental anguish
prevails in Order to survive, and in sbme circumstances, to benefit another.
Id.
In this case, the deep loss experienc d by the brother of Cyrus Elahi may linger for
an extensive period of time because of the ircumstances of their brother's death. “When
death results from terrorism, the fact of death and the cause of death can become
inextricably intertwined, thus interfering with the prospects for anguish to diminish over
time.” Flatow, 999 F. Supp. at 31. As stat d by the court in Higgins v. The Islamic
Republic of Iran, No. 99-377, slip. op. at 1 (D.D.C. Sept. 21, 2000), “death as a result of
terrorism, with its attendant horrific sunoui iding circumstances, prevents the anguish
[ felt by a relative of the deceased] from su1 siding.”
B. Court's Award of So1atium Darnages
Unlike a claim for lost wages, the amount to be awarded for the loss of solatium
“cannot be defined through models and variables.” Flatow, 999 F. Supp. at 32. Nor can
solatium damages be reduced to present value. As explained by Judge Lamberth,
“ [ wJhile economic losses can be reduced to present valUe with simple equations to
establish the amount of an annuity establisI d today which would have matched the
decedent's ostensible income stream, the sc pe and uncertainty of human emotion
renders such a calculation wholly inappropi 1 iate.” Id. (citing Drews v. Gobel Freight
Lines, Inc., 144 Ill.2d 84, 578 N.E.2d 970 (1991); United States v. Hayashi, 282 F.2d
599, 606 (9th Cir. 1960)).
The awards in cases similar to the one at bar provide the Court with some
guidance as to the appropriate amount to award to a decedent's relatives for a death
caused by terrorist acts. In Flatow, the court awarded $5,000,000 to each of the parents
and $2,500,000 to each sister and brother of Alisa Flatow. 999 F. Supp at 32. In
Eisenfeld, 2000 U.S. Dist LEXIS 9545 at 18, the court, similarly, awarded $5,000,000 to
each of the parents of Matthew Eisenfeld and to the mother of Arline Duker, who was
also killed in the terrorist bombing. In addition, the court awarded $2,500,000 to the
sister of Mr. Eisenfeld and thesame amount to the two sisters of Ms. Duker. Id.
In this case, the uncontroverted testimony establishes that Cyrus Elahi not only
was a dearly beloved brother to his two younger brothers, but he also fulfilled the role of
the head of the family and his loss may be said to be that of a brother and a father.' 6
Notwithstanding the inherent uncertainty of calculating an award of solatium, this Court
concludes that an award in the amount of $5,000,000 to each of the two brothers of
‘ 6 Although there was significant testimony regarding the mental anguish and loss of
society and comfort experienced by Cyrus Elahi's brothers, the Court finds that there was an
absence of specific testimony regarding mental anguish and loss of society and comfort
experienced by his sister. In addition, while in his younger years, after the divorce of his parents
and 21 years prior to his death, Cyrus was a father figure to all his siblings, there was insufficient
evidence about the state of Cyrus Elahi's relationship with his sister at the time of his death. See
Flatow, 999 F. Supp. at 30 (requiring proof of close emotional relationship before awarding
damages to siblings). Therefore, there will be no award of damages for anguish or loss of society
and comfort suffered by Cyrus Elahi's sister. No award was requested on behalf of any other
family member.
30
Cyrus Elahi would be appropriate for the profound emotional loss they have experienced
and undoubtedly will continue to experience in the future. Therefore, the Court awards
$5,000,000 to Dariush Elahi, on behalf of himself and $5,000,000 to Cyrus Elahi's
younger brother, Elham Elahi. See Flatow, 999 F. Supp. at 32 (awarding the plaintiff
$20,000,000 for solatium on behalf of decedent's heirs-in-law, including decedent's
siblings).
II. Count II— Action for Survival Dab ages
The courts have recognized that an ction may be pursued under the FSIA for
survival damages for the emotional distress and the pain and suffering resulting from acts
of state sponsored terrorism. See Flatow, 99 F. Supp. at 28; Eisenfeld, 2000 U.S. Dist
LEXIS 9545 at *16.47. Thus, a cause of aètion that could have been brought by Dr.
Elahi but for his death, may be asserted in this lawsuit for the benefit of the estate. In
Count II of the Complaint, Dariush Elahi asserts such a claim on behalf of the estate.
The plaintiff requests damages for the years f fear that Cyrus Elahi endured
before his assassination. According to the plaintiff, this “pre-impact emotional distress,”
which occurred well before the actual incident that resulted in death, is compensable in
an action for survival damages. The cases cited by the plaintiff, however, do not support
such a notion. See, e.g., Beynon v. Montgomery Cablevision Limited Partnership, 351
Md. 460, 718 A.2d 1161(1997) (affirming award of damages for pre-impact fear
suffered by decedent as he became aware that auto crash was imminent); Yowell v. Piper
31
Aircraft Corp., 703 S.W.2d 630, 634 (Tex. 1986) (affirming award of damages for
“mental anguish the decedents suffered fro n the time of the plane's breakup until it hit
the ground”). The general rule in survival actions is that damages are limited to those
suffered during the period between injury nd death. See HARPER, JAMES & GRAY, 4
THE LAW OF TORTS § 24.6, p. 474 (2d ed. r986). The cases cited by the plaintiff
similarly stand for the unremarkable proposition that mental anguish flowing from
wrongful conduct of the defendant is comp nsable. In this case, the wrongful conduct of
the defendant was the “extrajudicial killing” of Cyrus Elahi. The”pre-impact emotional
distress,” while perhaps real, was not a result of the specific incident of wrongful conduct
complained of by the plaintiff. The distress felt by Cyrus Elahi was the result of the pre-
existing threat to his life, and existed independent of the ultimate act of assassination.
Therefore, no damages for such pre-impact distress are available.
The plaintiff also claims damages fo the pain and suffering Cyrus Elahi
experienced while he was being atjacked arid killed in his apartment building. As
discussed above, this type of pain and suffefing is compensable. See HARPER, supra, §
25.16, at 612-6 13 (stating that decedent's 4in and suffering prior to death is
compensable under many survival statutes, but “ [ i}f death was instantaneous there can be
no recovery under such a statute for pain and suffering).
Several of the witnesses at the trial ii this Court testified that the French
authorities found pieces of flesh and blood bnder Cyrus Elahi's fingernails. They also
testified that a witness reported seeing a man fleeing the scene with blood on his jacket.
Mr. Boedels testified that Cyrus Elahi was shot seven times. Dr. Ganji testified that a
neighbor reported seeing two men struggli ig. Finally, Dariush Elahi testified that his
“memory [ from speaking with French police] is that it could have been for a period of as
much as three or four minutes that [ Cyrus Elahi and his assassin] were struggling before
he was hit in the head twice.” Tr. 226. Thi uncontroverted evidence demonstrates, at a
minimum, that Cyrus Elahi was aware of hat was happening to him for long enough to
grab hold and scratch his assailant. From thiS, the Court can infer that Cyrus Elahi
suffered a period of pain and suffering. But, although it is possible that the struggle
“could have been for a period of as much a' three or four minutes,” the evidence does not
demonstrate that the struggle actually did 1 st for any significant length of time. At trial,
the Court asked Mr. Boedels (who had the nost extensive access to the French
investigation) the following:
The Court: Was there anything indipated in the police report, in the autopsy
report, or from any other soui ce that you knOw of, sir, that indicated how
long it was from the time tha any one or all of these seven bullets struck
him to the time that he actua1 y died? What was the interval? Are we
talking hours? Are we talkin seconds? Are we talking minutes? If so,
how long? Anything that tell: us that?
Mr. Boedels: No, there is no eviden e, Your Honor, there is no evidence. But I
must say that it would have t en, let us say, at least something like 30
seconds, to my opinion. And]30 seconds with people who are willing to
kill you, it's a very long delay.
Tr. 139. Notwithstanding Mr. Boedel's (arid other witnesses') speculation, there was no
33
significant evidence offered at trial from w ich the Court could find that Cyrus Elahi
suffered for more than a very short period f time. The Court must take this into account
in determining damages for pain and suffering.
In sum, the Court holds that distress:endured prior to the assassination is not
compensable damage. In addition, the CoUrt can only find that Cyrus Elahi's pain and
suffering lasted a very brief period of time. Consequently, the Court will award a sum
for pain and suffering which is far below the amount requested by the plaintiff. The
Court concludes that the appropriate amount of compensation for pain and suffering of
the decedent is $1,000,000.
III. Count Ill — Punitive Damages
One of the main purposes of the Antiterrorism Act is to provide victims of state
sponsored terrorism (or, as in this case, the next-of-kin and personal representative) “an
important economic and financial weapon against these outlaw states.” H.R. Rep. 104-
383, at 182-183. In order to achieve this purpose, the stàtu ea1lo s for the imposition of
punitive damages for any action brought pursuant to the Flatow Amendment. 28 U.S.C.
§ 1605 note.
Because the plaintiff has established: subject matter jurisdiction under section
1605(a)(7), punitive damages may be awarded against MOIS, which has been found to
be an “agency or instrumentality of a foreign state,” i.e., the Islamic Republic of Iran. 28
U.S.C. § 1606. See also Flatow, 999 F. Supp. at 26; Anderson, 90 F. Supp.2d at 113.
34
4 -
Punitive damages may not, however, be awarded against the Islamic Republic of Iran.
The FSIA exempts a foreign state from liability for punitive damages.' 7 See Victims of
Trafficking and Violence Protection Act of 2000, P.L. No. 106-3 86, § 2002(0(2)
(October 28, 2000) (repealing recently enacted amendment to 28 U.S.C. § 1606
permitting punitive damages against a foreign state for actions under sections 1605(a)(7)
and 1610(0). See Anderson, 90 F. Supp.2 4 at 114; Cicippio, 18 F. Supp.2d at 69.
The purpose of punitive damages is “to punish [ a defendant] for his outrageous
conduct and to deter him and others like him from similar conduct in the future.”
RESTATEMENT (SECOND) OF TORTS § 9 O 8 ( ) (1997). Courts faced with gross violations
of international human rights have employçd the tool of punitive damages to achieve
these dual purposes. By granting sizeable awards, courts have recognized the
condemnation of the community of nationsof human rights abuses. See Alejandre 996
F. Supp. at 1250. Punitive damages are said to help reinforce “the consensus of the
community of humankind.” Filartiga v. Pena-Irala, 577 F. Supp. 860, 86. (FJ).N.Y.
‘ 7 The plaintiff seeks punitive damages against Iran under two theories: First, the plaintiff
argues that punitive damages may be awarded against Iran vicariously based on a theory of
respondeat superior. The Flatow court accepted this argument. See Flatow, 999 F. Supp. at 25-
27. Second, the plaintiff argues that Iran can be held jointly and severally liable for punitive
damages with MOIS based on Count N of the complaint — a conspiracy claim. The Court rejects
both of these arguments. Congress recently repealed legislation that would have permitted
punitive damages against a foreign state is cases, such as this one, brought under 28 U.S.C.
1605(a)(7). See P.L. No. 106-386, § 2002(0(2). In so doing, Congress returned the law to its
pre-1998 state, when it provided that a “foreign state except for an agency or instrumentality
thereof shall not be liable for punitive damages. . . .“ 28 U.S.C. § 1606. Congress' intention is
clear. Punitive damages are not available against a foreign state.
35
1984). And, as stated in Anderson v. Islamic Republic of Iran, “ [ t]he victim to whom the
award is made. . . stands as a surrogate foi civilized society in general; the victim is
made more than whole in order that others may be spared a similar injury.” 90 F.
Supp.2d at 114.
The assassination of Cyrus Elahi by agents of MOIS for his outspoken criticism of
the Iranian regime was intentional, premeditated, malicious, and cruel. Such an act
violates fundamental precepts of international law that are binding on all members of the
world community. This is reason enough justify the substantial punitive damages
awarded on this date against the defendant MOIS. Another reason one could award
punitive damages in this case is to recognize society's interest in the free expression of
political ideas. Cf Anderson, 90 F. Supp.2d at 114 (justifying award of punitive
damages on basis of “vindicat [ ing] the int rest of society at-large in the collection and
dissemination of complete and accurate inilormation about world conflicts).
Dr. Patrick Clawson testimony reg4ding Iran's expenditures on terrorism was
illuminating. Dr. Clawson estimated that the MOIS expended between $50 million to
$200 million on eliminating political oppo ients of the regime. As he has in previous
cases, Dr. Clawson testified that Iran is aw ire of the recent court judgments. He also
testified that it would be consistent with Jr in's prior behavior for Iran to alter its behavior
so as not to target Americans. To achieve hese goals, the Court finds it appropriate and
necessary to award $300,000,000.00 agaiiiL the defendant MOIS.
36
CONCLUSION
The plaintiff has established to the Court's satisfaction, pursuant to 28 U.S.C. §
1608(e), that the defendants, the Islamic Republic of fran and the Iranian Ministry of
Information and Security, engaged in an a 4 t of extrajudicial killing of a United States
national by ordering, directing and arrang4g for the assassination of Cyrus Elahi.
Accordingly, for the reasons more fully set forth above, the defendants are judged liable
for the assassination or Dr. Elahi under the provisions of the FSIA. Except for punitive
damages, the defendants are jointly and severally liable for all damages flowing from that
unlawful act as awarded by this Court in the following amounts:
Monetary Damages for Wrongful Death
Loss of Accretion to the Estate of Cyrus Elahi $725,359
Funeral Expenses to the Estate of Cyrus Elahi $14,676
Solatium — Dariush Elahi $5,000,000
Solatium — Etham Elahi $5,000,000
Survival Damages (Pain and suffering of decedent) $1,000,000
Punitive Damages $300,000,000
The Clerk of the Court shall enter judgment accordingly. An Order accompanies
thesô Findings of Fact and ConclusiOns of Law.
IT IS SO ORDERED.
Dated: December 20, 2000
I '
JOYCE HENS GREEN
1 United States District Judge
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