Estate of Cabello v. Fernandez-Larios

• Decision Date: 10 August 2001
• Docket Number: No. 99-0528-CIV.,99-0528-CIV.
• Citation: 157 F.Supp.2d 1345
• Parties: ESTATE OF Winston CABELLO, et al., Plaintiffs, v. Armando FERNANDEZ-LARIOS, Defendant.
• Court: U.S. District Court — Southern District of Florida

157 F.Supp.2d 1345

ESTATE OF Winston CABELLO, et al., Plaintiffs, v. Armando FERNANDEZ-LARIOS, Defendant.

No. 99-0528-CIV.

United States District Court, S.D. Florida.

August 10, 2001.

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Julie C. Ferguson, Miami, FL, Paul L. Hoffman, Bostwick & Hoffman, Santa Monica, CA, Shawn Roberts, The Center for Justice and Accountability, San Francisco, CA, Leo Cunningham, Nicole M. Healy, Adam Safwat, Wilson, Sonsini & Goodrich, Palo Alto, CA, David Sloss, St. Louis, MO, for Plaintiffs.

Parker D. Thompson, Thomson, Muraro & Razook, Isaac Mitrani, Mitrani, Rynor & Adamsky, Miami, FL, for Armando Fernandez-Larios.

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION AND DENYING MOTION FOR SUMMARY JUDGMENT AND RULE 12(B)(6) MOTION TO DISMISS

LENARD, District Judge.

Defendant Armando Fernandez Larios filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction (D.E.22) and a Motion for Summary Judgment or, in the Alternative, a Rule 12(b)(6) Motion to Dismiss (D.E.19) on May 24, 1999. Plaintiffs the Estate of Winston Cabello, Elsa Cabello, Karin Cabello-Moriarty, Aldo Cabello, and Zita Cabello-Barrueto filed Responses to these Motions on July 21, 1999. On August 20, 1999, Defendant filed a Reply in support of the Motion for Summary Judgment or, in the Alternative, a Rule 12(b)(6) Motion to Dismiss (D.E.19). On August 23, 1999, Defendant filed a Reply in support of the Motion to Dismiss for Lack of Subject Matter Jurisdiction (D.E.22). Having reviewed these Motions, the Responses, the Replies, and the record, the Court finds as follows.

I. Factual Background

The following factual allegations derive from Plaintiffs' Amended Complaint, filed April 7, 1999. This dispute arises out of the circumstances surrounding the October 17, 1973 alleged execution of Winston Cabello, whom Chilean President Salvador Allende had appointed to serve as the Director of the Regional Planning Office for the Atacama-Coquimbo region in northern Chile. Winston Cabello's "implementation of Allende's economic agenda made him a target of the conservatives," namely General Augsto Pinochet who ultimately staged a successful coup d'etat ousting President Allende on September 11, 1973. (Am.Compl.¶¶ 28-29.) General Oscar Haag, the military official responsible for Copiapo, Chile where Winston Cabello lived, detained him on September 12, 1973. (Id. ¶ 30.)

General Arellano Stark's unit selected thirteen political prisoners, including Winston Cabello, to be executed on October 17, 1973. (Id. ¶¶ 35-45.) Defendant Armando Fernandez-Larios was one of the six members in General Stark's unit. (Id. ¶ 35.) Between midnight and two o'clock in the morning that day, Defendant, the rest of General Stark's unit, and two additional military officers drove the thirteen political prisoners ten minutes outside of Copiapo, toward the City of La Serena, ordered the prisoners out of the truck, and executed all of them, some by gunfire and others by stabbing. (Id. ¶¶ 42-45.) Winston Cabello refused to leave the truck and was stabbed to death by Defendant who "slashed" Cabello with a corvo, a "short, curved knife ... designed to inflict wounds that, although ultimately fatal, cause a slow and painful death." (Id. ¶¶ 43 & 45.)

Defendant now resides in Miami, Florida. (Id. ¶ 10.) He arrived in the United States on February 4, 1987 "to provide information regarding his role and the role of his superiors in the 1976 [Directorate of National Intelligence]-sponsored carbombing in Washington, D.C. that killed the ex-Chilean Ambassador to the United States, Orlando Letelier, and his assistant, Ronni Karpen Moffit." (Id. ¶ 15.) Defendant pled guilty to being an "accessory after the fact" in the 1976 bombing and entered into the federal Witness Protection Program, from which he has "recently" left. (Id. ¶ 16-17.)

On October 18, 1973, the local Copiapo newspaper published an announcement falsely indicating that thirteen political prisoners had been killed "while trying to escape" during their transfer from detention in Copiapo to the La Serena prison. (Id. ¶ 48.)

In the Amended Complaint, Plaintiffs also allege that shortly after Winston Cabello's death in 1973, his family received a death certificate indicating that he was executed by the Chilean military. (Id. ¶ 49.) In 1985, the decedent's family received a revised death certificate identifying the cause of death as a gunshot wound. (Id.) Once the civilian government under the leadership of President Patricio Aylwin replaced General Pinochet's military regime in 1990, the Chilean government granted requests to exhume the bodies of decedent and the other twelve political prisoners killed on October 17, 1973. (Id. ¶ 52.) The exhumation revealed that many of the victims were slashed with corvos, but did not indicate whether the victims had been killed during an escape attempt. (Id. ¶ 53.) In 1991, the family received a final death certificate lacking reference to the cause of death. (Id. ¶ 49.)

Moreover, between 1973 and 1990, Chilean military authorities deliberately concealed the decedent's burial location from his family. (Id. ¶ 50.) The Chilean military government in 1978 also gave amnesty to the perpetrators and accomplices of criminal acts committed between September 11, 1973 and March 10, 1978. (Id. ¶ 56.) On August 24, 1990, the Chilean Supreme Court extended that decree of amnesty to human rights violations committed by the military during the foregoing period. (Id.) Plaintiffs thus allege that they are without adequate remedies in Chile. (Id.)

It should also be noted that Defendant entered the United States on February 4, 1987 "in connection with an agreement with U.S. officials to provide information regarding his role and the role of his superiors in the 1976 DINA-sponsored carbombing in Washington, D.C. that killed the ex-Chilean Ambassador to the United States, Orlando Letelier, and his assistant, Ronnie Karpen Moffit." (Id. ¶ 15.) Shortly, after his arrival, Defendant entered into the federal Witness Protection Program, which he "recently" left. (Id. ¶¶ 16-17.)

II. Procedural Background

A. Amended Complaint

Plaintiffs the Estate of Winston Cabello, whose beneficiaries are the decedent's widow, Veronica Silva, and two daughters, Susan Cabello Silva and Marcela Cabello, all of whom are residents and citizens of Chile; Elsa Cabello, the decedent's mother and a U.S. citizen; Karin Cabello-Moriarty, the decedent's sister and a U.S. citizen; Aldo Cabello, the decedent's brother, who is a Chilean citizen and a permanent resident of the U.S.; and Zita Cabello-Barrueto, a U.S. citizen and the decedent's legal representative and sister, filed a seven-count Amended Complaint on April 7, 1999. On April 24, 2000, the Court dismissed Counts V and VII, pursuant to Federal Rule of Civil Procedure 41(a)(1)(i).

The remaining Counts are as follows.

Count I—Plaintiffs the Estate of Winston Cabello, Elsa Cabello, Karin Cabello-Moriarty, Aldo Cabello, and Zita Cabello-Barrueto sue Defendant for the extrajudicial killing of the decedent in violation of the Alien Tort Claim Act ("ATCA"), 28 U.S.C. § 1350 (1948); the Torture Victim Protection Act ("TVPA"), 28 U.S.C. § 1350 (1992); and Article 6 of the International Covenant on Civil and Political Rights ("ICCPR"), Annex to G.A. Res. 2200, 21 U.N. GAOR Res. Supp. (No. 16) 53, U.N. Doc. A/6316 (1966) (signed but not ratified by the United States), reprinted in 6 I.L.M. 368, 370 (1967).

Count II—Plaintiff the Estate of Winston Cabello sues Defendant for the torture of the decedent in violation of the TVPA; Article 7 of the ICCPR; and the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment ("Torture Convention"), June 26, 1987, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85 (1984).

Count III—Plaintiffs Aldo Cabello and the Estate of Winston Cabello sue Defendant under the ATCA, 28 U.S.C. § 1350, for having committed crimes against humanity in violation of Article 7 of the Rome Statute on the International Criminal Court, art. 20(2), opened for signature July 17, 1998, U.N. Doc. A/CONF.183/9 (1998) (not yet in force), 37 I.L.M. 999 (1998); the Charter of the International Military Tribunal, Nuremberg, of August 8, 1945, confirmed by G.A. Res. 3, U.N. Doc. A/50 (1946) and G.A. Res. 95, U.N. Doc. A/236, 59 Stat. 1546 (1946); the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, Nov. 26, 1968, G.A. Res. 2391, U.N. GAOR, 23d Sess., Supp. No. 18, at 40, U.N. Doc. A/7218, 754 U.N.T.S. 73 (entered into force Nov. 11, 1970); Principles of International Co-Operation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes against Humanity, G.A. Res. 3074, U.N. GAOR 28th Sess., Supp. No. 30A at 78, U.N. Doc. A/9039/Add.1 (1973); Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Report of the Secretary General, pursuant to para. 2 of U.N.S.C. Res. 808 (1993), U.N. Doc. S/25704 at 36 (1993), adopted by U.N.S.C. Res. 827, U.N. Doc. S/Res/827 (1993), reprinted in 32 I.L.M. 1159, 1170 (1993); Statute for the International Tribunal for Rwanda, U.N. SCOR, 49th Sess., 3453rd mtg., at 1, U.N. Doc. S/Res/955 (1994).

Count IV—Plaintiffs Aldo Cabello and the Estate of Winston Cabello sue Defendant under the ATCA, 28 U.S.C. § 1350, for the cruel, inhuman or degrading treatment or punishment of the decedent in violation of Article 7 of the ICCPR, Article 16 of the Torture Convention, and the TVPA.

Count VI—Plaintiffs Elsa Cabello, Zita Cabello-Barrueto, Karin Cabello-Moriarty, and Aldo Cabello sue Defendant for intentional infliction of emotional distress in violation of the laws of the State of Florida and the...