Chavez v. Carranza

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0102p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
-
ANA CHAVEZ, CECILIA SANTOS, JOSE
-
CALDERON, ERLINDA FRANCO, and DANIEL
ALVARADO, -
Plaintiffs-Appellees, -
No. 06-6234

,
>
-
-
v.
-
-
NICOLAS CARRANZA,
Defendant-Appellant. -
N

Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 03-02932—Jon Phipps McCalla, Chief District Judge.
Argued: October 28, 2008
Decided and Filed: March 17, 2009
*
Before: SILER and McKEAGUE, Circuit Judges; LUDINGTON, District Judge.

_________________

COUNSEL
ARGUED: Robert M. Fargarson, Bruce D. Brooke, FARGARSON & BROOKE,
Memphis, Tennessee, for Appellant. Matthew J. Sinback, BASS, BERRY & SIMS,
Nashville, Tennessee, for Appellees. John C. Kiyonaga, ATTORNEY AT LAW,
Alexandria, Virginia, for Amicus Curiae. ON BRIEF: Robert M. Fargarson, Bruce D.
Brooke, FARGARSON & BROOKE, Memphis, Tennessee, for Appellant. David R.
Esquivel, BASS, BERRY & SIMS, Nashville, Tennessee, for Appellees. John C.
Kiyonaga, ATTORNEY AT LAW, Alexandria, Virginia, for Amicus Curiae.

*
The Honorable Thomas L. Ludington, United States District Judge for the Eastern District of
Michigan, sitting by designation.

1
No. 06-6234 Chavez, et al. v. Carranza Page 2

_________________

OPINION
_________________

SILER, Circuit Judge. Defendant Nicolas Carranza appeals a jury verdict
awarding compensatory and punitive damages to victims of torture, extrajudicial killing,
and crimes against humanity in violation of the Alien Tort Statute (ATS), also called the
Alien Tort Claims Act (ATCA) and the Torture Victims Protection Act (TVPA).
Carranza argues that the district court abused its discretion by (1) holding that
extraordinary circumstances justified equitable tolling of the statute of limitations,
(2) not granting comity to the Salvadoran Amnesty Law, and (3) making various
evidentiary rulings. He also contends that the district court erred in its instruction to the
jury on command responsibility. We AFFIRM.

BACKGROUND

From the 1930s to the mid-1980s, El Salvador was governed by a military
dictatorship. By the 1970s, opposition to the military’s dominance increased. In
response, militant organizations, such as the Salvadoran Security Forces, carried out
systematic repression and human rights abuses against political dissenters. Civil unrest
in the country resulted in a war which lasted from 1981 to 1992.

On January 1, 1992, the government of El Salvador and the Salvadoran guerilla
forces signed a Peace Accord sponsored by the United Nations. In March 1993, the
Salvadoran legislature adopted an amnesty law precluding criminal or civil liability for
political or common crimes committed prior to January 1, 1992. In March 1994, the first
national elections were held after the end of the civil war.

Carranza spent nearly thirty years as an officer in the armed forces of El
Salvador. He served as El Salvador’s Vice-Minister of Defense and Public Security
from about October 1979 until January 1981. While in this position, he exercised
operational control over the Salvadoran Security Forces–comprised of the National
Guard, the National Police, and the Treasury Police. He also served as Director of the
No. 06-6234 Chavez, et al. v. Carranza Page 3

Treasury Police from June 1983 until May 1984. In 1984, he became a resident of the
United States. He moved to Memphis, Tennessee, in 1986 and has been a naturalized
citizen since 1991.

Plaintiff Cecilia Santos was tortured and assaulted while in custody at the
National Police headquarters in San Salvador. On September 25, 1980, she was arrested
and accused of planting a bomb. She was taken to the headquarters of the National
Police where she was electrocuted, physically tortured with acid, and had an object
forced into her vagina. She spent 32 months in confinement.

On September 11, 1980, members of the National Police entered Plaintiff Jose
Calderon’s home, forced him to the ground, and murdered Calderon’s father.

Plaintiff Erlinda Franco’s husband, Manuel, was abducted, tortured, and killed
in 1980. He was a professor at the National University and was a prominent leader of
the Democratic Revolutionary Front (FDR). On November 27, 1980, he attended a
meeting of FDR leadership in San Salvador. While at the meeting, members of the
Security Forces abducted Mr. Franco and five other leaders of the FDR. Later that day,
the bodies of Mr. Franco and the other five men were found. Each had visible signs of
torture.

On August 25, 1983, Plaintiff Daniel Alvarado was abducted by members of the
Treasury Police while attending a soccer game. He was accused of killing Lt. Cmdr.
Albert Schaufelberger, a United States military advisor in El Salvador. After four days
of torture, Alvarado confessed to killing Schaufelberger. Carranza presided over the
ensuing press conference. After being held in custody for several weeks, Alvarado was
questioned by members of the United States Navy and Federal Bureau of Investigation
about the assassination of Schaufelberger. Alvarado was unable to provide accurate
information about the assassination and subsequently explained that his confession was
coerced through torture. After imprisonment for over two years, Alvarado fled to
Sweden.
No. 06-6234 Chavez, et al. v. Carranza Page 4

Plaintiffs filed suit against Carranza on December 10, 2003. Using a command
responsibility theory, they claim that Carranza is liable for the acts of torture,
extrajudicial killing, and crimes against humanity.

Carranza filed several motions during the course of the litigation, raising the
same issues he argues on appeal: (1) the district court should not equitably toll the statute
of limitations, and (2) the Salvadoran Amnesty Law bars plaintiffs’ claims.

After trial, the jury found Carranza liable and awarded $500,000 in compensatory
damages and $1 million in punitive damages to each plaintiff. However, the jury could
not reach a unanimous verdict as to claims made by Plaintiff Ana Chavez. The district
court declared a mistrial as to her claims, and those claims were later voluntarily
dismissed.

DISCUSSION

I. Equitable Tolling of the Statute of Limitations

A.

Under the TVPA, plaintiffs have ten years from the date the cause of action arose
to bring suit. 28 U.S.C. § 1350. However, the ATS does not specify a statute of
limitations. When faced with this situation, courts should apply the limitations period
provided by the local jurisdiction unless “a rule from elsewhere in federal law clearly
provides a closer analogy than available state statutes, and when federal policies at stake
and the practicalities of litigation make that rule a significantly more appropriate vehicle
for interstitial lawmaking.” N. Star Steel Co. v. Thomas, 515 U.S. 29, 35 (1995) (quoting
DelCostello v. Teamsters, 462 U.S. 151, 172 (1983)).

Like all courts that have decided this issue since the passage of the TVPA, we
conclude that the ten-year limitations period applicable to claims under the TVPA
likewise applies to claims made under the ATS. See Jean v. Dorelien, 431 F.3d 776,
778-79 (11th Cir. 2005); Papa v. United States, 281 F.3d 1004, 1012-13 (9th Cir. 2002);
Doe v. Islamic Salvation Front, 257 F. Supp. 2d 115, 119 (D.D.C. 2003).
No. 06-6234 Chavez, et al. v. Carranza Page 5

The TVPA and the ATS share a common purpose in protecting human rights
internationally. The TVPA grants relief to victims of torture, 28 U.S.C. § 1350, and the
ATS grants access to federal courts for aliens seeking redress from torts “committed in
violation of the law of nations.” 28 U.S.C. § 1350. Both statutes use civil suits as the
mechanism to advance their shared purpose and both can be found in the same location
within the United States Code. See Arce v. Garcia, 434 F.3d 1254, 1262, n.17 (11th Cir.
2006); Papa, 281 F.3d at 1012.

Likewise, the justifications for the application of the doctrine of equitable tolling
under the TVPA apply equally to claims brought under the ATS. Congress provided
explicit guidance regarding the application of equitable tolling under the TVPA. The
TVPA “calls for consideration of all equitable tolling principles in calculating this
[statute of limitations] period with a view towards giving justice to plaintiff’s rights.”
S. REP. NO. 102-249, at 10 (1991).

We have identified five factors a district court should consider when determining
whether to equitably toll the statute of limitations: (1) lack of notice of the filing
requirement, (2) lack of constructive knowledge of the filing requirement, (3) diligence
in pursuing one’s rights, (4) absence of prejudice to the defendant, and (5) the plaintiff’s
reasonableness in remaining ignorant of the particular legal requirement. See Graham-
Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 561 (6th Cir. 2000).
However, “the propriety of equitable tolling must necessarily be determined on a case-
by-case basis.” Id. (quoting Truitt v. County of Wayne, 148 F.3d 644, 648 (6th Cir.
1998)).

Again, Congress has provided explicit guidance as to when to apply the equitable
tolling doctrine in TVPA cases:

Illustrative, but not exhaustive, of the types of tolling principles which
may be applicable include the following. The statute of limitations
should be tolled during the time the defendant was absent from the
United States or from any jurisdiction in which the same or similar action
arising from the same facts may be maintained by the plaintiff, provided
that the remedy in that jurisdiction is adequate and available. Excluded
also from calculation of the statute of limitations would be the period
No. 06-6234 Chavez, et al. v. Carranza Page 6

when a defendant has immunity from suit. The statute of limitations
should also be tolled for the period of time in which the plaintiff is
imprisoned or otherwise incapacitated. It should also be tolled where the
defendant has concealed his or her whereabouts or the plaintiff has been
unable to discover the identity of the offender.
S. REP. NO. 102-249, at 10-11 (1991) (emphasis added).

Courts that have addressed equitable tolling in the context of claims brought
under the TVPA and ATS have determined that the existence of extraordinary
circumstances justifies application of the equitable tolling doctrine. See Arce, 434 F.3d
at 1259, 1262-63 (tolling the statute of limitations under the TVPA and ATS until the
signing of the Peace Accord in 1992 because the fear of reprisals against plaintiffs’
relatives orchestrated by people aligned with the defendants excused the plaintiffs’
delay); Cabello v. Fernandez-Larios, 402 F.3d 1148, 1155 (11th Cir. 2005) (tolling the
statute of limitations under the TVPA and ATS “[u]ntil the first post-junta civilian
president was elected in 1990” for claims brought against a Chilean military officer);
Hilao v. Estate of Marcos, 103 F.3d 767, 773 (9th Cir. 1996) (tolling the statute of
limitations for TVPA and ATS claims against former Philippine dictator Ferdinand
Marcos until the Marcos regime was overthrown); Forti v. Suarez-Mason, 672 F. Supp.
1531, 1549 (N.D. Cal. 1987) (holding that the plaintiff raised an issue of fact as to
whether the ATS statute of limitations should be tolled for claims against an Argentine
military officer until a democratically-elected government was in place).

When the situation in a given country precludes the administration of justice,
fairness may require equitable tolling. In such limited circumstances, where plaintiffs
legitimately fear reprisals against themselves or family members from the regime in
power, justice may require tolling. These circumstances, outside plaintiffs’ control,
make it impossible for plaintiffs to assert their TVPA and ATS claims in a timely
manner. In such extraordinary circumstances, equitable tolling of TVPA and ATS
claims is appropriate.

In sum, we conclude that the ten-year limitations period applicable to TVPA
claims also governs claims under the ATS, equitable tolling principles apply, and the
No. 06-6234 Chavez, et al. v. Carranza Page 7

existence of extraordinary circumstances provides a justification for the application of
the equitable tolling doctrine.

B.

We review a decision on the application of equitable tolling de novo where the
facts underlying the equitable tolling are undisputed. Cook v. Comm’r of Soc. Sec., 480
F.3d 432, 435 (6th Cir. 2007). When the facts are in dispute, we apply an abuse of
discretion standard. Id. Here, Carranza disputes plaintiffs’ contention that facts and
circumstances in El Salvador justify equitable tolling. Accordingly, we review the
district court’s decision for an abuse of discretion.

Each of the acts for which Carranza was held liable occurred more than ten years
before plaintiffs filed suit. However, the district court determined that the pervasive
violence that consumed El Salvador until March 1994 (when El Salvador held its first
national elections following the signing of the Peace Accord) justified equitable tolling
of the ten-year statute of limitations. These findings of fact are supported by the record.

The evidence established that widespread human rights abuses were carried out
by the Salvadoran military against civilians during the country’s civil war and that
plaintiffs feared reprisals against themselves or their family members. Carranza held a
position of power within the Salvadoran military regime.

In addition, the violence associated with the civil war continued after the signing
of the Peace Accord in 1992 until at least March 1994, when the first national elections
were held after the civil war. Plaintiffs submitted affidavits stating that even after they
arrived in the United States, they were afraid that their families in El Salvador would be
subject to repression or violence by the Salvadoran military. They also stated that they
did not feel that it was safe for their families in El Salvador to bring suit until many years
after the end of the civil war. Given this evidence, it was within the district court’s
discretion to toll the statute of limitations until March 1994.

Carranza argues that the district court abused its discretion in tolling the statute
of limitations because plaintiffs did not introduce evidence at trial proving they feared
No. 06-6234 Chavez, et al. v. Carranza Page 8

reprisals for bringing this lawsuit, and the plaintiffs were not aware of their right to bring
a legal action during the period in which they feared reprisals by the Salvadoran military.
Carranza’s arguments fail.

First, the decision to invoke equitable tolling is a question of law. Rose v. Dole,
945 F.2d 1331, 1334 (6th Cir. 1991). The district court addressed and decided the
equitable tolling issue in denying Carranza’s motions to dismiss and for summary
judgment. As such, the issue had been resolved prior to trial and no additional proof
was required.

Second, equitable tolling was justified by extraordinary circumstances outside
of plaintiffs’ control, which made it impossible for plaintiffs to assert their claims in a
timely manner. Whether the plaintiffs knew they had an actionable claim under United
States law does not change the fact that at least until March 1994, the circumstances in
El Salvador were not sufficiently safe for plaintiffs to seek redress in court.

The district court appropriately considered the documentary evidence and
witness declarations in addressing the issue of equitable tolling when it considered and
denied Carranza’s motions to dismiss and for summary judgment. The district court did
not abuse its discretion in finding extraordinary circumstances existed justifying the
equitable tolling of the ten-year statute of limitations.

II. Salvadoran Amnesty Law

The Salvadoran Amnesty Law was passed by the Salvadoran Legislature in order
to provide amnesty to all those who participated in political or common crimes during
the civil war in El Salvador before 1992. See Decreto Legislativo 486 de 3/22/93
Aprueba la Ley Sobre la Amnistía General para la Consolidación de la Paz [Legislative
Decree 486 of 3/22/93 Approving the General Amnesty Law for Consolidation of the
Peace], Diario Oficial, 23 de Marzo de 1993 (E.S.). The purpose of the Salvadoran
Amnesty Law is “to reconcile and reunite the Salvadoran family by promulgating, and
immediately implementing, legal provisions that protect the right of the entire
No. 06-6234 Chavez, et al. v. Carranza Page 9

Salvadoran population to fully conduct its activities in harmony, and a climate of trust
and respect for all social sectors.”

Carranza claims that he is entitled to amnesty pursuant to the Salvadoran
Amnesty Law.1 He argues that the district court erred when it declined to apply the
Salvadoran Amnesty Law to plaintiffs’ claims. We review the district court’s decision
not to grant comity to the Salvadoran Amnesty Law for an abuse of discretion. See, e.g.,
Bigio v. Coca-Cola Co., 448 F.3d 176, 178 (2d Cir. 2006); Stonington Partners, Inc. v.
Lernout & Hauspie Speech Prods. N.V., 310 F.3d 118, 121-22 (3d Cir. 2002); cf.
Taveras v. Taveraz, 477 F.3d 767, 783 (6th Cir. 2007) (“[T]he theory of comity can
serve as a discretionary basis for a court to determine whether a foreign country court’s
judgment should be given preclusive effect.”).

International comity is “the recognition which one nation allows within its
territory to the legislative, executive or judicial acts of another nation, having due regard
both to international duty and convenience, and to the rights of its own citizens or other
persons who are under the protection of its laws.” Hilton v. Guyot, 159 U.S. 113, 164
(1895). In order for an issue of comity to arise, there must be an actual conflict between
the domestic and foreign law. Hartford Fire Ins. Co. v. Cal., 509 U.S. 764, 798 (1993).
There is no conflict for comity purposes “where a person subject to regulation by two
states can comply with the laws of both.” Id. at 799 (quoting RESTATEMENT (THIRD)
FOREIGN RELATIONS LAW § 403 cmt. e (1987)).

There is no conflict between domestic and foreign law because the Salvadoran
Amnesty Law cannot be interpreted to apply extraterritorially. A statute must not be
interpreted as having extraterritorial effect without a clear indication that it was intended

1
It is not clear from the record whether Carranza is immune from suit under the Salvadoran
Amnesty Law. Article 4 of the law sets forth a series of procedures for a person to gain amnesty.
According to Article 4, an unindicted person or a person wishing to benefit from the amnesty must file a
motion or appear before a trial judge and request a certificate of amnesty. It is unclear whether this process
applies exclusively to criminal defendants or whether it is meant to apply to defendants in civil cases as
well.
Nevertheless, there is no evidence in the record indicating that Carranza has a certificate of
amnesty. In any event, neither party has raised this issue and it does not impact our analysis of the
extraterritorial application of the Salvadoran Amnesty Law, nor does it effect the outcome of this case.
No. 06-6234 Chavez, et al. v. Carranza Page 10

to apply outside the country enacting it. BMW Stores, Inc. v. Peugeot Motors of Am.,
Inc., 860 F.2d 212, 215 n.1 (6th Cir. 1988). There is nothing in the Salvadoran Amnesty
Law to suggest that it should apply or was intended to apply outside of El Salvador.

Moreover, compliance with both domestic law and the Salvadoran Amnesty Law
is possible. Plaintiffs may be barred from filing suit in El Salvador, but they are not
barred from filing suit in the United States. Likewise, if Carranza were living in El
Salvador, he would likely be immune from suit. However, he is a citizen and resident
of the United States and is therefore subject to civil liability for his violations of the ATS
and TVPA. In addition, the Republic of El Salvador, as amicus, argues that this case
would be rejected if it were brought in El Salvador– further demonstrating that
Salvadoran courts can apply the Salvadoran Amnesty Law domestically without
undermining the jurisdiction of United States courts.

Carranza’s reliance on F. Hoffmann-LaRoche v. Empagran, 542 U.S. 155 (2004),
is misplaced. In Empagran, the Supreme Court interpreted an antitrust statute, the
Foreign Trade Antitrust Improvements Act of 1982 (FTAI), which expressly places
extraterritorial limits on the application of the Sherman Act. With some exceptions, the
FTAI provides that the Sherman Act “shall not apply to conduct involving trade or
commerce . . . with foreign nations.” Id. at 158 (quoting 15 U.S.C. § 6a). In reaching
its conclusion, the Supreme Court did not address the ATS or TVPA, nor did it discuss
international comity. Therefore, Empagran is of little relevance to the law at issue in
this case.

III. Evidence at Trial

A. The Truth Commission Report

Carranza contends that the district court abused its discretion in admitting the
Truth Commission Report into evidence. Specifically, Carranza argues that the report
is not timely and, therefore, is not trustworthy.

The Truth Commission Report was prepared by the Commission on the Truth for
El Salvador, an entity established under the 1992 United Nations-sponsored peace
No. 06-6234 Chavez, et al. v. Carranza Page 11

agreements between the Government of El Salvador and the Frente Farabundo Marti
para la Liberación Nacional. The Truth Commission Report sets forth the factual
findings that the Truth Commission discovered through its investigation of El Salvador–
an investigation mandated by the peace agreements sponsored by the U.N. The district
court admitted the Truth Commission Report into evidence under the Public Records and
Reports exception to the hearsay rule.

Under the Public Records and Reports exception to the hearsay rule, reports of
“public offices or agencies” setting forth “factual findings resulting from an
investigation made pursuant to authority granted by law” are admissible “unless the
sources of information or other circumstances indicate lack of trustworthiness.” FED. R.
EVID. 803 (8)(C). To determine whether a report is trustworthy, courts consider the
following four factors: (1) the timeliness of the investigation upon which the report is
based, (2) the special skill or experience of the investigators, (3) whether the agency held
a hearing, and (4) possible motivational problems. Bank of Lexington & Trust Co. v.
Vining-Sparks Sec., Inc., 959 F.2d 606, 616-17 (6th Cir. 1992).

Carranza claims that the Report is not timely because the investigation on which
it was based did not begin until at least eight years after Carranza’s association with the
El Salvador military was over, and ended seven years after he moved to the United
States. However, the timeliness factor focuses on how much time passed between the
events being investigated and the beginning of the investigation. See id. at 617. Here,
the Peace Accord was signed on January 1, 1992, and the Truth Commission began its
investigation on July 13, 1992, seven months later. Therefore, the timeliness of the
investigation suggests the Report is trustworthy.

Carranza also contends that the Truth Commission Report is untrustworthy
because the commission did not hold a hearing. However, a formal hearing is not
necessary when other indicia of trustworthiness are present. Id. Even though the Truth
Commission did not conduct a formal hearing, it interviewed numerous witnesses,
victims, and relatives associated with the events described in the Report. In addition, the
Truth Commission reviewed thousands of complaints of acts of violence, examined
No. 06-6234 Chavez, et al. v. Carranza Page 12

documents, interviewed members of the military, and visited locations of acts of
violence.

For the foregoing reasons, the district court did not abuse its discretion in
admitting the Truth Commission Report into evidence.

B. Testimony of Ambassador White and Professor Karl

Carranza argues that the district court abused its discretion in allowing two of
plaintiffs’ expert witnesses, Robert White, former U.S. Ambassador to El Salvador, and
Professor Terry Karl, the former Director of the Center of Latin American Studies at
Stanford University, to testify. Carranza objects to several statements made by both
experts as highly inflammatory and based on inadmissible hearsay.

Experts may base their testimony on inadmissible facts “of a type reasonably
relied upon by experts in the particular field.” FED. R. EVID. 703. Ambassador White’s
testimony was based on intelligence gathered by himself, his staff, and other government
agents. Furthermore, Ambassador White was listed, without objection by Carranza, in
the joint pretrial order as an expert witness. Professor Karl testified as to the levels of
violence in El Salvador during the period of military control. Professor Karl relied upon
interviews, commission reports (including the Truth Commission Report), documentary
research, and field research to form her opinions. See, e.g., Katt v. City of New York, 151
F. Supp. 2d 313, 356-57 (S.D.N.Y. 2001) (noting that interviews, commission reports,
research articles, scholarly journals, books, and newspaper articles are the types of data
reasonably relied upon by social science experts).

Carranza also contends that the district court improperly admitted testimony by
Professor Karl. Carranza claims that Professor Karl should not have been permitted to
testify about military procedures and command responsibility because she has never
served in a military organization and she was never identified as a military expert.

Professor Karl’s report contains a lengthy discussion of her opinions about
Salvadoran military structure and Carranza’s command responsibility. In her report,
Professor Karl discusses her credentials as an expert in the politics of Latin America
No. 06-6234 Chavez, et al. v. Carranza Page 13

including: the military strategies of both the Salvadoran military and security forces and
the armed opposition, the command structure of the Salvadoran military, the corruption
of the Salvadoran military and security forces, and the practice of death squads.

The district court did not abuse its discretion in allowing the jury to determine
the weight to be given to the testimony of Professor Karl and Ambassador White.

C. Embassy Cables

Carranza contends that Trial Exhibit 6 was improperly admitted into evidence
because its purported author has disavowed authorship.

Trial Exhibit 6 is a United States government document describing a
conversation in 1980 between a U.S. official and Salvadoran military officers in which
Carranza “supported [a] line of thinking” that assassinations of political opponents
should be accomplished whenever possible. Ambassador White testified that the author
of this document was Colonel Brian Bosch, a U.S. military representative at the U.S.
Embassy in San Salvador. Ambassador White used the contents of this document to
support his testimony regarding the Salvadoran military’s responsibility for the six FDR
murders, the basis for Franco’s claim. In a post-trial affidavit, Colonel Bosch claims he
is not the author of this cable and that he has no personal knowledge of the statements
attributed to Carranza.

Trial Exhibit 6 was admissible under Rule 803(6) of the Federal Rules of
Evidence. Through the testimony of Ambassador White, the plaintiffs established a
foundation that certain cables, including Trial Exhibit 6, were transmitted from United
States governmental agents describing or recording events made at or near the time the
acts took place by someone with personal knowledge of the acts. Ambassador White
also testified that the cables were kept in the course of regularly conducted business of
the United States governmental agency, and it was the regular practice of the agencies
to make those records. Colonel Bosch’s affidavit disputes that he is the author of Trial
Exhibit 6 but it does not dispute its authenticity.
No. 06-6234 Chavez, et al. v. Carranza Page 14

However, even if Trial Exhibit 6 was improperly admitted, it did not unfairly
prejudice Carranza. The gravamen of the cable is the knowledge and approval of the
assassination of the FDR leaders by members of the Salvadoran military, including
Carranza. This was corroborated by several witnesses and exhibits at trial, including
the testimony of Ambassador White and Professor Karl, as well as the Truth
Commission Report and several other cables.

Carranza also argues that the copy of Trial Exhibit 6 he was provided with during
discovery is illegible and highly redacted. Therefore, Carranza characterizes the cleaner
copy of Trial Exhibit 6, provided to the jury by plaintiffs, as “previously undisclosed.”
This contention is without merit and is belied by the fact that plaintiffs provided
Carranza with a copy of Trial Exhibit 6 during his deposition and Carranza was asked
a number of questions about it.

D. Photographs

Carranza argues that the district court abused its discretion when it admitted into
evidence photographs depicting dead bodies and victims of military atrocities. Carranza
contends that the photographs were unfairly prejudicial.

The photographs are relevant (1) to prove crimes against humanity and (2) to
establish liability under a theory of command responsibility. They are relevant proof
that the Salvadoran military was engaged in a systemic attack against civilians. The
photographs also demonstrate that Carranza had notice of the human rights violations
committed by his subordinates, as required for liability under a theory of command
responsibility.

Although it is likely that the photographs had a substantial impact on the jury,
the district court did not abuse its discretion in determining that the photographs’
probative value was not substantially outweighed by the danger of unfair prejudice.
No. 06-6234 Chavez, et al. v. Carranza Page 15

E. Exclusion of Carranza’s Expert

Carranza contends that the district court abused its discretion in excluding the
testimony of his expert witness, Dr. David Escobar Galindo. Dr. Galindo’s testimony
would have centered on the purposes behind the Salvadoran Amnesty Law as well as its
application to plaintiff’s claims against Carranza. As the district court properly declined
to grant comity to the Salvadoran Amnesty Law, testimony regarding how the
Salvadoran Amnesty Law would apply to Carranza is not relevant and, therefore, not
helpful.

An expert opinion on a question of law is inadmissible. Berry v. City of Detroit,
25 F.3d 1342, 1353-54 (6th Cir. 1994). Dr. Galindo’s testimony would have addressed
whether the Salvadoran Amnesty Law prohibits U.S. courts from exercising jurisdiction
over plaintiffs’ claims. This is a legal question and not one which should be presented
to a jury. Therefore, the district court did not abuse its discretion in excluding Dr.
Galindo’s testimony.

Carranza also argues that the district court erred in not allowing Dr. Galindo to
offer factual information of circumstances in El Salvador. However, Dr. Galindo was
not proposed as a fact witness until four days prior to trial. Nevertheless, plaintiffs
agreed to stipulate to those facts that were disclosed in Dr. Galindo’s expert report.
Carranza did not introduce those facts.

IV. Jury Instructions on the Law of Command Responsibility

Finally, Carranza argues that the district court erred in its instructions to the jury
on the law of command responsibility. Specifically, he contends that the jury should
have been instructed on proximate cause.

Three elements must be established for command responsibility to apply: (1) a
superior-subordinate relationship between the defendant/military commander and the
person or persons who committed human rights abuses; (2) the defendant/military
commander knew, or should have known, in light of the circumstances at the time, that
subordinates had committed, were committing, or were about to commit human rights
No. 06-6234 Chavez, et al. v. Carranza Page 16

abuses; and (3) the defendant/military commander failed to take all necessary and
reasonable measures to prevent human rights abuses and punish human rights abusers.
See Ford v. Garcia, 289 F.3d 1283, 1288 (11th Cir. 2002).

The law of command responsibility does not require proof that a commander’s
behavior proximately caused the victim’s injuries. See Hilao, 103 F.3d at 776-79
(proximate cause is not an element of command responsibility). This conclusion is in
accord with the legislative history of the TVPA:

[A] higher official need not have personally performed or ordered the
abuses in order to be held liable. Under international law, responsibility
for torture, summary execution, or disappearances extends beyond the
person or persons who actually committed those acts - anyone with
higher authority who authorized, tolerated or knowingly ignored those
acts is liable for them.
S. REP. NO. 102-249, at 9 (1991) (footnote omitted). Any question as to whether an
injury was caused by a commander’s act or omission can be resolved by a finding of
liability under the elements of command responsibility.

Accordingly, plaintiffs were not required to submit proof of proximate cause in
order to succeed on their claims under the law of command responsibility, and the
district court was not required to instruct the jury on this issue.

AFFIRMED.