Cabello v. Fernandez-Larios, No. 04-10030.

• Decision Date: 14 March 2005
• Docket Number: No. 04-10030.
• Citation: 402 F.3d 1148
• Parties: Elsa CABELLO, Zita Cabello-Barrueto, et al., Plaintiffs-Appellees, v. Armando FERNANDEZ-LARIOS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

402 F.3d 1148

Elsa CABELLO, Zita Cabello-Barrueto, et al., Plaintiffs-Appellees, v. Armando FERNANDEZ-LARIOS, Defendant-Appellant.

No. 04-10030.

United States Court of Appeals, Eleventh Circuit.

March 14, 2005.

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Steven W. Davis, Boies, Schiller & Flexner, LLP, Miami, FL, for Defendant-Appellant.

Matthew J. Eisenbrandt, Center for Justice and Accountability, San Francisco, CA, Leo P. Cunningham, Nicole M. Healy, Jenny L. Dixon, Natalie L. Bridgeman, Wilson, Sonsini, Goodrich & Rosati, Palo Alto, CA, for Plaintiffs-Appellees.

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

Before ANDERSON and WILSON, Circuit Judges, and OWENS^*, District Judge.

PER CURIAM:

Winston Cabello (Cabello), a Chilean economist, was executed by Chilean military officers following a coup d'etat, on October 17, 1973. On February 19, 1999, almost twenty-six years later, his survivors filed an action in district court against Armando Fernández-Larios (Fernández), a Chilean military officer who was alleged to have participated in his execution. The lawsuit was filed pursuant to the Alien Tort Claims Act (ATCA), 28 U.S.C. § 1350 (1991), and the Tort Victims Protection Act (TVPA), 28 U.S.C. § 1350 note (1991). Cabello's survivors alleged that Fernández participated in Cabello's extra-judicial killing, torture, crimes against humanity, and cruel, inhuman or degrading punishment. The case proceeded to a jury trial and resulted in a verdict in favor of the Cabello survivors and an award of $3 million dollars in compensatory damages and $1 million dollars in punitive damages. Fernández appeals contending: (1) that the Cabello survivors' claims are barred by the statute of limitations; (2) that neither the TVPA, nor the ATCA provide private causes of action such as this one; (3) that he did not have any command responsibility and did not personally participate in the alleged human rights violations, and, as a result, he is not liable under the TVPA or the ATCA; (4) that the trial court erred in admitting certain depositions into evidence and denying his pretrial motion in limine to restrict evidence as to the treatment of Cabello. Finding no error, we affirm.

I. Factual Background

On September 11, 1973, President Allende was ousted in a coup d'état by Chilean military officers led by General Augusto Pinochet who began operating a military junta. Following the coup, Cabello was arrested and incarcerated in the Copiapó jail. Within a few weeks, he was transferred to the Copiapó military garrison. Cabello had worked as an economist appointed by the government of President Salvador Allende to serve as Director of the Regional Planning Office for the Atacarna-Coquimbo region in Copiapó, Chile.

In early October 1973, General Arellano Stark's unit embarked upon the "Caravan of Death." The unit traveled to many cities in northern Chile where the military officers engaged in acts of extrajudicial killing, torture, and abuse of various individuals who were incarcerated due to their alleged opposition to the military junta. Fernández traveled with the "Caravan of Death" to several cities, including Copiapó, and served as bodyguard to General Arellano.

On October 16, 1973, Fernández and five other members of General Arellano's squad arrived at the Copiapó military garrison. They instructed local military officers to provide them with the prisoners' files from which the squad selected thirteen prisoners, Cabello included, for execution. In the early morning hours of October 17, 1973, Fernández, the rest of General Stark's unit, and two additional military officers drove the thirteen prisoners ten minutes outside of Copiapó toward the City of La Serena, ordered the prisoners out of the truck, and executed each by gunfire or by stabbing. Cabello refused to leave the truck and was stabbed to death by Fernández who slashed Cabello with a corvo, a short, curved knife that is designed to inflict fatal wounds while causing a prolonged and painful death.

On October 18, 1973, the local Copiapó newspaper published a bando, an official statement of the Chilean government, falsely indicating that thirteen political prisoners had been killed while attempting to escape during a transfer from detention in Copiapó to the La Serena prison. Shortly after Cabello's death in 1973, his family received a death certificate indicating that he was executed by the Chilean military. In 1985, Cabello's family received a revised death certificate indicating that the cause of death was a gunshot wound.

Once the civilian government under the leadership of President Patricio Aylwin replaced General Pinochet's military regime in 1990, the Chilean government began granting requests to exhume the bodies of the thirteen political prisoners killed on October 17, 1973. These exhumations revealed that many of the victims were slashed with corvos, but did not indicate whether this was done during an attempted escape. In 1991, Cabello's family received a third and final death certificate lacking reference to the cause of death.

Between 1973 and 1990, Chilean military officials deliberately concealed Cabello's burial location from his family. In 1978, the Chilean military government extended amnesty to the perpetrators and accomplices of criminal acts committed between September 11, 1973 and March 10, 1978. On August 24, 1990, the Chilean Supreme Court extended that decree of amnesty to human rights violations committed by the military during the previous years. Cabello's estate brought this action in district court on February 19, 1999.

Fernández resigned from the Chilean military in January 1987, by which time he had received the rank of Major. At the time of his resignation, Fernández publicly admitted that he was a member of General Arellano's squad when Cabello was executed. He secretly entered the United States and lived in an undisclosed location under the protection of the United States Government. In February 1987, Fernández pled guilty to being an "accessory after the fact" to the 1976 car bombing in Washington, D.C., that killed the former Chilean ambassador to the United States and his assistant.¹

II. Discussion

A. Equitable Tolling

We first decide whether the Cabello survivors' claims were time-barred or whether the applicable statute of limitations was equitably tolled. The question of whether equitable tolling applies is a legal one subject to de novo review. See Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1531 (11th Cir.1992). We are, however, bound by the trial court's findings of fact unless they are clearly erroneous. Id.

Fernández initially argues that the TVPA's ten-year statute of limitations cannot be extended to the ATCA. We readily dispense with that issue. It is clear that "[t]he ATCA and the TVPA share the same ten-year statute of limitations." Arce, et al. v. Garcia, 400 F.3d 1340 (11th Cir.2005). This ten-year statute of limitations is applicable to the Cabello survivor's claims.

1. Retroactivity

Fernández additionally argues that even if the TVPA's statute of limitations applies to the ATCA, its application is inappropriate in this case because such retroactive application will revive a cause of action that would have been barred at the time the TVPA was enacted. The Cabello survivors argue that because the TVPA does not increase liability for past conduct, it should be applied retroactively.

The Supreme Court has "frequently noted ... that there is a presumption against retroactive legislation [that] is deeply rooted in our jurisprudence [and] [t]he principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal." Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 946 117 S.Ct. 1871, 1876 (1997) (alterations in original) (citations omitted). However, the TVPA could apply retroactively if we find that Congress has clearly indicated its intent to do so. Id. The Supreme Court has created a three-part analysis to determine retroactivity. Id. First, we must examine "whether Congress has expressly prescribed the statute's proper reach." Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S.Ct. 1483, 1505, 128 L.Ed.2d 229 (1994). When Congress does not expressly address the issue of retroactivity in the statute, as with the TVPA, then we employ normal rules of statutory construction to ascertain the temporal scope of the statute. Craig v. Eberly, 164 F.3d 490, 494 (10th Cir.1998) (internal citations omitted). Third, if the statute's temporal scope cannot be determined by means of normal statutory interpretation methods, then we must consider whether the statute has a retroactive effect. Lindh v. Murphy, 521 U.S. 320, 325-26, 117 S.Ct. 2059, 2062-63, 138 L.Ed.2d 481 (1997).

When Congress enacts a new statute without expressly prescribing the statutes' proper reach, the courts must determine whether the new statute has retroactive effect to events that took place prior to the enactment of the statute. The Supreme Court has said that retroactive effect is impermissible if the statute would impair the rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed. Landgraf, 511 U.S. at 280, 114 S.Ct. at 1505 (internal citations omitted).

The TVPA creates no new liabilities nor does it impair rights. Rather, the TVPA extended the ATCA, which had been limited to aliens, to allow citizens of the United States to bring suits for torture and extrajudicial killings in United States courts. See H.R.Rep. No. 102-367, at 3 (1991), reprinted in 1992 U.S.C.C.A.N. 84, 86. Additionally, other international agreements imposed liability for torture, killing, and mistreatment at the time of Fernández's alleged actions. See e.g., Universal Declaration of Human Rights,...