Ford ex rel. Estate of Ford v. Garcia, No. 01-10357.

Decision Date30 April 2002
Docket NumberNo. 01-10357.
Citation289 F.3d 1283
PartiesWilliam P. FORD, for and on behalf of the ESTATE OF Ita C. FORD, Julia Clark Keogh, for and on behalf of the Estate of Mary Elizabeth Clarke, a.k.a. Maura Clarke, et al., Plaintiffs-Appellants, v. Jose Guillermo GARCIA, an individual, Carlos Eugenio Vides-Casanova, an individual, Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Peter Charles Choharis, Mayer, Brown & Platt, Washington, DC, for Plaintiffs-Appellants.

Kurt R. Klaus, Jr., Miami, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before CARNES, BARKETT and KRAVITCH, Circuit Judges.

KRAVITCH, Circuit Judge:

The main issue presented in this appeal, one of first impression in the federal courts, is the allocation of the burden of proof in a civil action involving the command responsibility doctrine brought under the Torture Victim Protection Act. This appeal also presents the issue of whether the district court committed reversible error in allowing a defense witness to testify as an expert where Defendants-Appellees did not comply with all of the local rules regarding expert witnesses.

I. Background

Three nuns and one layperson (the "churchwomen"), all Americans engaged in missionary and relief work in El Salvador, were abducted, tortured, and murdered in December 1980 by five members of the Salvadoran National Guard (the "Guardsmen"). Approximately three years later, in response to American pressure to punish the responsible parties, the Guardsmen were convicted of the crimes and sentenced to prison terms. In the period before and after this tragic incident, thousands of civilians in El Salvador were victimized by violence during a civil war in which both communist and colonialist forces competed with the government for control of the country. At the time of the murders and directly before, Defendant General Carlos Eugenio Vides Casanova was Director of the Salvadoran National Guard and Defendant General Jose Guillermo Garcia was El Salvador's Minister of Defense. Both defendants currently reside in Florida.

Subsequent to the murders of the churchwomen, Congress passed the Torture Victim Protection Act of 1991 ("TVPA"), Pub. L. No. 102-256, 106 Stat. 73 at Historical and Statutory Notes to 28 U.S.C.A. § 1350.1 The TVPA allows victims of violations of international law, or those victims' representatives, to bring a civil cause of action in federal district court against commanders under the international law doctrine of command responsibility.2 This doctrine makes a commander liable for acts of his subordinates, even where the commander did not order those acts, when certain elements are met. Relying on the TVPA, Plaintiffs-Appellants, for and on behalf of the estates of the churchwomen, filed suit against Defendants-Appellees in 1999 seeking to recover damages for the torture and murders. Appellants invoked the doctrine of command responsibility and alleged that the executions at issue were part of a pattern and practice of extrajudicial killings committed by the Salvadoran National Guard under Appellees' command.

At trial, Appellants offered evidence of the great number of atrocities committed against civilians at the hands of the Salvadoran military in the months preceding the churchwomen's deaths. The Generals conceded that they were aware of a pattern of human rights abuses in El Salvador during their tenures as Minister of Defense and Director of the National Guard, but argued that they did not have the ability to control their troops during this period. As part of their defense, Appellees called Edwin Corr, U.S. Ambassador to El Salvador from 1985 to 1988, to testify as both a fact and expert witness. After deliberations, the jury returned a verdict for Appellees. Appellants argue on appeal that the jury instructions given at trial contained material misstatements of law and that Ambassador Corr's testimony was erroneously admitted because they had no pretrial notice of Appellees' intent to call Corr as an expert and received no expert report.

II. Discussion
A. The Jury Instructions

Appellants contend that the jury instructions in this case contained errors of law which placed on them the burden of establishing elements that they are not required to prove under either the TVPA or the international law which the TVPA has adopted. The instructions required Appellants to prove by a preponderance of the evidence first that the Guardsmen were under Appellees' "effective command," defined as the legal authority and the practical ability of the Generals to control the guilty troops, and second, that the Generals failed to take all reasonable steps to prevent or repress the murders of the churchwomen.3 Appellants argue that both of these showings are properly affirmative defenses that the Appellees had the burden of proving at trial. Finally, Appellants contend that the district court's instructions erroneously included proximate cause as a required element before liability could be established under the TVPA and command responsibility doctrine.4

1. The Command Responsibility Instruction

Federal Rule of Civil Procedure 51 provides that "[n]o party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection." Fed. R. Civ. Pro. 51. This rule exists "to prevent unnecessary new trials because of errors the judge might have corrected if they had been brought to his attention at the proper time." Pate v. Seaboard R.R., 819 F.2d 1074, 1082 (11th Cir.1987) (quoting Industrial Dev. Bd. v. Fuqua Indus., 523 F.2d 1226, 1238 (5th Cir.1975)); see also Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1329 (11th Cir.1999).

This court, however, has recognized an exception to the general requirements of Rule 51 where the district court commits error "so fundamental as to result in a miscarriage of justice" if relief is not granted. Iervolino v. Delta Air Lines, Inc., 796 F.2d 1408, 1414 (11th Cir.1986). Under this standard of review, generally referred to as plain error, an appellant must establish that: (1) an error occurred; (2) the error was plain; (3) it affected substantial rights; and (4) it seriously affected the fairness of the judicial proceedings. United States v. Humphrey, 164 F.3d 585, 588 n. 3 (11th Cir.1999). Therefore, if no objection to the challenged instruction was raised at trial, we only review for plain error. United States v. Smith, 231 F.3d 800, 807 (11th Cir.2000). Because Appellants failed to object to the command responsibility instruction at trial, we review for plain error.5

The essential elements of liability under the command responsibility doctrine are: (1) the existence of a superior-subordinate relationship between the commander and the perpetrator of the crime; (2) that the commander knew or should have known, owing to the circumstances at the time, that his subordinates had committed, were committing, or planned to commit acts violative of the law of war; and (3) that the commander failed to prevent the commission of the crimes, or failed to punish the subordinates after the commission of the crimes. Although the TVPA does not explicitly provide for liability of commanders for human rights violations of their troops, legislative history makes clear that Congress intended to adopt the doctrine of command responsibility from international law as part of the Act.6 Specifically identified in the Senate report is In re Yamashita, 327 U.S. 1, 66 S.Ct. 340, 90 L.Ed. 499 (1946), a World War II era case involving the command responsibility doctrine in habeas review of the conviction of a Japanese commander in the Philippines by an American military tribunal. See S. Rep. No. 102-249, at 9 (1991). Describing Yamashita's holding, the Senate Report stated that the Supreme Court found a foreign general "responsible for a pervasive pattern of war crimes (1) committed by his officers when (2) he knew or should have known they were going on but (3) failed to prevent or punish them." Id. In the years since Yamashita and the passage of the TVPA, the International Criminal Tribunals for the Former Yugoslavia and Rwanda have been established, and their statutes contain language providing for imposition of command responsibility on substantively identical grounds to those enunciated in Yamashita.7

Appellants assert that once a plaintiff has proven these three prima facie elements by a preponderance of the evidence, the burden then shifts to the defendant to establish any affirmative defenses. In Appellants' view, possible affirmative defenses are that the commander did not have effective command over his troops, i.e. the practical ability to control them, or that he took all necessary and reasonable measures to prevent the abuses. Although never explicitly using these terms, Appellants seem to assume that this shift of burdens places both the burden of production, i.e., the burden of coming forward, and the burden of persuasion on the defendants with regard to these affirmative defenses. We understand their argument to be that the instructions challenged here misstated the law of command responsibility by misallocating the burden of persuasion on these matters. Put another way, Appellants accept that they bear the burden of showing (1) a superior-subordinate relationship between the commander and the perpetrators, (2) the requisite knowledge on the part of the commander, and (3) the commander's failure to prevent or repress the abuses or to punish the perpetrators they deny, however, that the requirements for proving these three elements are as onerous as the district court explained to the jury. They contend that contrary to the command responsibility instruction given, it is for the defendants to come...

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