968 F.3d 1216
11th Cir.2020Background
- During mass protests and military operations in Bolivia (Sept–Oct 2003), eight civilians were killed; plaintiffs are relatives who sued former President Gonzalo Sánchez de Lozada and Defense Minister José Carlos Sánchez Berzaín under the Torture Victim Protection Act (TVPA) and for wrongful death under Bolivian law.
- Trial evidence included eyewitness testimony that soldiers in multiple locations fired lethal rounds at unarmed civilians, testimony that some soldiers were ordered to "shoot at anything that moved," and counter-evidence of blockades, ambushes, and armed incidents in some areas.
- A jury found each death was an extrajudicial killing and found Lozada and Berzaín liable under command-responsibility, awarding $10 million on TVPA claims; the jury found no willful and intentional wrongful death under Bolivian law.
- The district court granted Defendants’ renewed Rule 50 motion, entering JMOL for Defendants on the TVPA claims on the ground Plaintiffs failed to prove the killings were "deliberated." The court had admitted several State Department cables over Plaintiffs’ hearsay objections.
- On appeal, the Eleventh Circuit reversed the JMOL as to the TVPA sufficiency issue (vacating and remanding for consideration under the proper standard), held admission of the State Department cables was an abuse of discretion, and remanded for a new trial on the wrongful-death claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the evidence suffices to prove each death was an "extrajudicial killing" under the TVPA | Plaintiffs: eyewitnesses and soldiers' testimony show purposeful, indiscriminate lethal shootings of unarmed civilians (not accidental or sudden passion) supporting deliberation | Defendants: lack of proof identifying individual shooters or their intent; alternative plausible explanations (ambushes, armed protestors, military reaction) | Court: evidence, viewed favorably to Plaintiffs, could support a finding of "deliberated" killings; JMOL reversed and remanded for district court to apply correct standard |
| Whether Plaintiffs were required to prove a preconceived, coordinated plan by Lozada/Berzaín to kill civilians to satisfy TVPA deliberation or command-responsibility | Plaintiffs: no—deliberation can be shown by purposeful shootings (e.g., orders to shoot civilians); a grand plan is not required to show an extrajudicial killing or to establish command responsibility | Defendants: absent evidence of a premeditated plan linking the leaders to killings, Plaintiffs cannot show deliberation or tie leaders to the deaths | Court: rejected the district court’s conflation—evidence of soldiers acting under orders to indiscriminately shoot can show deliberation; Plaintiffs need only show extrajudicial killings and then connect Defendants under command-responsibility; remanded to determine sufficiency of both elements |
| Admissibility of State Department cables (hearsay/public-records exception) | Plaintiffs: cables contain multi-level, unidentified hearsay and unverified reports; not admissible under Rule 803(8) absent showing preparer’s personal knowledge or trustworthiness | Defendants: cables are official, signed reports from U.S. Embassy/State Dept and thus admissible under the public-records exception; any error was harmless or duplicative | Held: district court abused discretion by admitting the cables without determining which portions were preparer’s factual findings vs. third-party hearsay; admission was not harmless—new trial on wrongful-death claims ordered |
| Refusal to give Plaintiffs’ requested jury instruction on intent under Bolivian wrongful-death law | Plaintiffs: requested instruction (knowledge that death is probable suffices for intent) accurately stated Bolivian law per expert and was material to liability | Defendants: the requested language is not a Bolivian code provision; court should not adopt Plaintiffs’ interpretive gloss absent reliable proof | Held: court declined to decide because State Dept cables error required retrial; noted Rule 44.1 allows consideration of foreign-law materials and that an unrefuted foreign-law affidavit can be sufficient, but remand required for further proceedings |
Key Cases Cited
- Mamani v. Berzain, 654 F.3d 1148 (11th Cir. 2011) (earlier interlocutory decision rejecting conclusory ATS pleading; used TVPA definition of "extrajudicial killing")
- Mamani v. Berzain, 825 F.3d 1304 (11th Cir. 2016) (addressing TVPA exhaustion and procedural posture; declined to resolve fact-intensive pleading issues on interlocutory appeal)
- Doe v. Drummond Co., 782 F.3d 576 (11th Cir. 2015) (recognizing indirect liability theories under TVPA, including command responsibility)
- Cabello v. Fernandez-Larios, 402 F.3d 1148 (11th Cir. 2005) (TVPA liability where defendant ordered targeted execution of a detainee)
- Owens v. Republic of Sudan, 864 F.3d 751 (D.C. Cir. 2017) ("deliberated killing" covers broad, coordinated attacks and purposeful acts causing death)
- Han Kim v. Democratic People’s Republic of Korea, 774 F.3d 1044 (D.C. Cir. 2014) (malnutrition/torture causing death can constitute a deliberated killing)
- United Technologies Corp. v. Mazer, 556 F.3d 1260 (11th Cir. 2009) (public-records hearsay exception requires factual findings based on preparer’s observations or duty to report)
- Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988) (Rule 803(8) allows factual findings and conclusions from authorized investigations if trustworthy)
- Royal Palm Props., LLC v. Pink Palm Props., LLC, 950 F.3d 776 (11th Cir. 2020) (standard of review for JMOL described)
- Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (framework for considering international-law principles in federal common-law torts)
- Kotteakos v. United States, 328 U.S. 750 (1946) (harmless error standard assessing substantial influence on jury verdict)