[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 14, 2005
No. 04-10030
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 99-00528-CV-JAL
ELSA CABELLO,
ZITA CABELLO-BARRUETO, et al.
Plaintiffs-Appellees,
versus
ARMANDO FERNÁNDEZ-LARIOS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 14, 2005)
Before ANDERSON and WILSON, Circuit Judges, and OWENS*, District Judge.
_________________________
*Honorable Wilbur D. Owens, Jr., United States District Judge for the Middle District of
Georgia, sitting by designation.
PER CURIAM:
Winston Cabello (Cabello), a Chilean economist, was executed by Chilean
military officers following a coup d’état, on October 17, 1973. On February 19,
1999, almost twenty-six years later, his survivors filed an action in district court
against Armando Fernandez-Larios (Fernandez), 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 Fernandez 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. Fernandez 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
2
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
3
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
4
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
1
Fernández currently lives in Miami. The terms of his plea agreement for the
assassination attempt prevent him from returning to Chile. As a result, he is the only member of
the Chilean military subject to personal jurisdiction in the United States. The district court
excluded this evidence as prejudicial and not probative of any material fact at issue since he did
5
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, 11th Cir. 2005,___F.3d.___,___ (No. 02-14427, February
28, 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
not join the group responsible for the ambassador’s attempted assassination until after Cabello
was killed in Copiapó.
6
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 (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
7
retroactive effect. Lindh v. Murphy, 521 U.S. 320, 325-26, 117 S. Ct. 2059, 2062-
63 (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, U.N. General Assembly
Res. 217 (III)(A) (1948); International Covenant on Civil and Political Rights,
U.N. General Assembly Res. 2200 (XXI)A, U.N. Doc. A/6316 (1966); European
8
Convention for the Protection of Human Rights and Fundamental Freedoms, Art.
3, Council of Europe, European Treaty Series No. 5 (1968). Therefore, prior to the
TVPA, this Court could have exercised extraterritorial jurisdiction to reach
wrongful death actions involving defendants and locations outside the forum
jurisdiction. See, e.g., Alvarez-Machain v. United States, 107 F.3d 696, 703 (9th
Cir. 1996). Further, as the district court correctly noted, torture, crimes against
humanity, and cruel, inhumane, or degrading punishment have been a part of the
United States and international law long before Fernández’s alleged actions.
Cabello Barrueto v. Fernández Larios, 205 F. Supp. 2d 1325, 1331 (S.D. Fla.
2002). Because the TVPA does not increase Fernández’s liability or impair any of
his rights, the Act does not create an impermissible retroactive effect if applied to
his pre-TVPA actions.
2. The Appropriateness of Equitable Tolling
Fernández argues that the Cabello survivors’ claims are time-barred because
the prisoners were killed in 1973 and the Cabello survivors first filed their
complaint in 1999. The district court recognized that the statute of limitations did
not begin to run until 1990 when the bodies of the thirteen prisoners killed at
Copiapó were located and exhumed, which occurred only after General Pinochet
left office. Thus, the district court reasoned that the Cabello survivors’ claims
9
were not time-barred because the TVPA’s ten-year statute was equitably tolled.
Our precedent has established that the TVPA’s and ATCA’s statute of
limitations can be equitably tolled. See Arce at *11. We must therefore determine
whether the facts of this case demonstrate “extraordinary circumstances” sufficient
for equitable tolling. Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir.
1999). This is a fact-specific determination because a finding of “extraordinary
circumstances [necessary for equitable tolling] is reserved for extraordinary facts.”
See Arce at *23 (internal quotations omitted).
As we held in Justice, equitable tolling is appropriate in situations where the
defendant misleads the plaintiff, allowing the statutory period to lapse; or when the
plaintiff has no reasonable way of discovering the wrong perpetrated against her,
as is the case here. 6 F.3d at 1479. Additionally, in order to apply equitable
tolling, “courts usually require some affirmative misconduct, such as deliberate
concealment.” Arce at *16.
Arce, our only case addressing the application of equitable tolling to claims
brought under the ATCA and the TVPA, illustrates the proper analysis. In that
case, “Salvadoran refugees...claim[ed] that they were tortured by soldiers in El
Salvador during the course of a campaign of human-rights violations by the
Salvadoran military from 1979 to 1983.” See id. at *2. The plaintiffs claimed that
10
an on-going civil war in El Salvador and defendants’ pattern of denial about their
personal responsibility for human rights abuses in El Salvador prevented them
from timely filing their claims. Id. at *14-*16. We found these arguments
insufficient to equitably toll the statute of limitations, stating that “[e]quitable
tolling is appropriate only in “extraordinary circumstances [such as those] that are
both beyond the plaintiff’s control and unavoidable even with diligence. Id. at
*11.
The instant case is distinguishable from Arce on its facts. The district court
determined that the Cabello survivors knew that Cabello was killed in October
1973 and that unknown military officers were involved. However, it was not until
1990 that they obtained knowledge of Cabello’s manner of death and information
about the harm suffered by him before his death. Until Cabello’s unmarked grave
was located, his family did not know that he and the other prisoners had been
tortured before being massacred. Although Victor Bravo, a local official called
upon by the military authorities to identify the bodies of the dead, had seen the
prisoners’ bodies shortly after they were killed, he never spoke of their conditions
to the families.
The Chilean government, with whom Fernández conspired, concealed both
the manner in which Cabello died and his place of burial. The Chilean government
11
also created great confusion by sending three conflicting death certificates to the
Cabello family. Until the first post-junta civilian president was elected in 1990,
the Chilean political climate prevented the Cabello family from pursuing any
efforts to learn of the incidents surrounding Cabello’s murder. The district court
decided that Cabello’s family could not possibly have pursued their claims until
Cabello’s body was exhumed.
We agree with the district court’s conclusion that the cover-up of the events
surrounding Cabello’s death made it nearly impossible for the Cabello survivors to
discover the wrongs perpetrated against Cabello. As a result of this deliberate
concealment by Chilean authorities, equitable tolling is appropriate in this case.
3. Date Statute of Limitations Began to Run
Though we have determined that the TVPA was equitably tolled, the inquiry
does not end there. We must establish when exactly the ten-year statute of
limitations began to run. The Seventh Circuit addressed this issue and in so doing,
distinguished equitable tolling and equitable estoppel. The court opined that “a
plaintiff who invokes equitable tolling to suspend the statute of limitations must
bring suit within a reasonable time after he has obtained, or by due diligence could
have obtained, the necessary information.” Cada v. Baxter Healthcare Corp., 920
F.2d 446, 453 (7th Cir. 1990). By contrast, when a plaintiff is entitled to equitable
12
estoppel, the clock stops upon the tolling of the limitations period and begins again
when the impediment to bringing suit is removed.
As we stated in Justice, the plaintiff should act with due diligence and file
his or her action in a timely fashion in order for equitable tolling to apply. 6 F.3d
at 1479. The information regarding the circumstances and manner of Cabello’s
death was not discoverable or knowable until 1990; therefore, the 1999 filing of
this claim was timely.
Our Circuit’s precedent indicates that the statutory clock is stopped while
tolling is in effect. In Knight v. Schofield we addressed the statute of limitations
question in the habeas context. There we held that “tolling means just what it says
– the clock is stopped while tolling is in effect.” 292 F.3d 709, 712 (11th Cir.
2002). Although this holding addressed equitable tolling of the Antiterrorism and
Effective Death Penalty Act, we find that it is equally applicable in the context of
other statutes. When a statute is equitably tolled, the statutory period does not
begin to run until the impediment to filing a cause of action is removed. Thus, in
this case, the clock was stopped until 1990 when the information surrounding
Cabello’s death became available. Since the statutory period began to run in 1990,
the Cabello survivors’ claim filed in 1999 is timely.
Accordingly, we affirm the ruling of the district court and hold that the
13
Cabello survivors’ claims were not time-barred because they were entitled to
equitable tolling of the ten-year statute of limitations.
B. Fernandez’s Liability for Cabello’s Death
In addition to Fernández’s argument that the Cabello survivors’ claims are
time-barred, he claims that there is no valid cause of action under either the ATCA
or the TVPA. Further, Fernández contends that, even if we find that the ATCA
and the TVPA create private causes of action, he cannot be held liable for
Cabello’s death because he was not present and had no direct involvement in the
killing.2
Renewed motions for judgment as a matter of law test the sufficiency of the
evidence supporting a jury’s verdict; we review such motions de novo and use the
same standard as the district court. See Hessen v. Jaguar Cars, Inc., 915 F.2d 641,
644 (11th Cir. 1990).
1. Cause of Action under the ATCA and TVPA
Fernández, citing Ford ex rel. v. Garcia, initially argues that the Cabello
survivors cannot bring a TVPA cause of action because he had no command
2
Fernández also argues that he is not liable because he was merely present at the scene of
the crime. Because the evidence shows that Fernández was engaged in affirmative acts that
contributed to Cabello’s death, Fernández’s “mere presence” argument lacks merit. See Jacobs
v. Singletary, 952 F.2d 1282, 1290-91 (11th Cir. 1992) (Defendant was indicted for being one of
several people involved in a shooting but it was not known who fired shots. Jury was properly
given aiding and abetting instruction, not instruction regarding mere presence.)
14
responsibility. 289 F.3d 1283 (11th Cir. 2002), cert. denied, 537 U.S. 1147, 123 S.
Ct. 868 (2003). This is not a correct reading of Ford. In Ford, survivors of
churchwomen who had been tortured and murdered in El Salvador brought an
action under the TVPA, pursuant to the command responsibility doctrine, against
former Salvadoran officials. Id. We held that the district court did not err when it
instructed a jury that plaintiffs were required to show that guardsmen were under
the effective control of defendant officials. See Id. at 1290. This holding
contemplates that the Cabello survivors may bring an action under the TVPA
pursuant to the command responsibility doctrine, however, it does not limit actions
brought under the TVPA to this command responsibility theory as Fernández
claims. Thus, although Fernández had no command responsibility of actions that
led to Cabello’s death, the TVPA still provides a cause of action.
Fernández further states that the ATCA creates no private cause of action to
enforce international law norms. He argues that the ATCA does not provide the
Cabello survivors with a forum because they fail to identify any international
authority imposing liability upon a soldier who lacked any command authority.
Accordingly, Fernández argues that the ATCA does not create a private cause of
action that extends liability down the chain of command to a subordinate officer.
Additionally, he states, that there was no viable claim because the Cabello
15
survivors failed to show that Fernández (1) either personally killed or tortured
Cabello or ordered his killing; (2) that as a junior military officer in the Chilean
military, he was merely acting as instructed by his superiors; and (3) that the
killing was carried out by his superiors and thus, that he is not liable. 3
We have not addressed whether claims based on indirect liability are
actionable under the ATCA and the TVPA. However, by their terms, the ATCA
and the TVPA are not limited to claims of direct liability. The courts that have
addressed the issue have held that the ATCA reaches conspiracies and accomplice
liability. See e.g., Hilao v. Estate of Marcos, 103 F.3d 767, 776-77 (9th Cir.
1996); Carmichael v. United Tech Corp., 835 F.2d 109, 113-14 (5th Cir. 1988).
An examination of legislative history indicates that the TVPA was intended
to reach beyond the person who actually committed the acts, to those ordering,
abetting, or assisting in the violation. See S. Rep. No. 102-249, at 8-9 (1991). The
Senate Report relies on several international agreements that contemplate liability
under international norms for indirect responsibility. For instance, “Article 4(1) of
the United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment provides: ‘Each State Party shall ensure that
3
Although Fernández argues that he cannot be secondarily liable because he was a
military subordinate acting under the command of his superiors, military law provides that he
can still be found liable. See, e.g., United States v. Jaks, 28 M.J. 908 (1989) (where the evidence
indicates that a junior officer was more than merely present and instead acted to further the
conspirator’s objectives, he may be liable even if his co-conspirators were his military superiors)
16
all acts of torture are offenses under its criminal law. The same shall apply to an
attempt to commit torture and to an act by any person which constitutes complicity
or participation in the torture.’” Id at 9 n.16. Also, “Article 3 of the Inter-
American Convention to Prevent and Punish Torture similarly provides: ‘The
following shall be held guilty of the crime of torture: (a) A public servant or
employee who, acting in that capacity, orders, instigates or induces the use of
torture, or directly commits it or who, being able to prevent it, fails to do so’.” Id
at 9 n.16. Additionally, other courts have held that where a defendant has been
found directly or secondarily responsible for acts of torture or extrajudicial killing,
the acts are in violation of the law of nations within the meaning of the TVPA and
ATCA. See, e.g., Burnett v. Al Baraka Inv. & Dev. Corp., 274 F. Supp. 2d 86, 99-
100 (D.D.C. 2003); Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1355-56 (N.D.
Ga. 2002). Because the TVPA and the ATCA permit claims based on direct and
indirect theories of liability, the jury’s general verdict may be upheld if sufficient
evidence supports either theory.
2. Sufficiency of the Evidence
The jury was instructed that it could find Fernández liable only if he
“actively participated” in the offenses. The jury was told to consider whether he
directly participated in the offenses or whether he participated as a conspirator or
17
as an aider or abettor. Fernández argues that the jury verdict should be reversed
because their decision was unsupported by the evidence.
a. Direct Liability
We turn to the evidence to consider whether it is sufficient to support the
jury’s general verdict. The trial testimony includes evidence that while Fernández
was in Copiapó, Patricio Barruet, one of Cabello’s fellow prisoners, was awakened
by an unidentified person who woke Cabello and escorted him from his room.
Cabello was killed that night. According to Victor Bravo Cabello was among the
dead. Bravo’s testimony indicates that Cabello had cuts on his ear and a gaping
wound running from his ear to throat. Fernández admitted that he had the only
corvo in Copiapó and had not loaned it to anyone. Dr. Elvira Miranda, who
examined Cabello’s body after the exhumation, found tears in his clothing and
blood stains consistent with knife wounds that could have been caused by a corvo.
Although the evidence supporting direct liability is not as strong as that supporting
indirect liability, as discussed below, we find that a jury could reasonably have
concluded from this circumstantial evidence that Fernández was directly liable for
Cabello’s torture or death. We need not focus on direct liability, however, because
overwhelming substantial evidence supports a finding of indirect liability.
b. Indirect Liability
18
Fernández can be found indirectly liable for Cabello’s death on two different
theories: (1) aiding and abetting or (2) conspiracy. The district court instructed the
jury that to find Fernández indirectly liable for aiding and abetting, the Cabello
survivors needed to prove “active participation” by preponderance of the evidence.
In assessing “active participation,” the jury was instructed to consider if (1) one or
more of the wrongful acts that comprise the claim were committed, (2) Fernández
substantially assisted some person or persons who personally committed or caused
one or more of the wrongful acts that comprise the claim, and (3) Fernández knew
that his actions would assist in the illegal or wrongful activity at the time he
provided the assistance.
From the physical evidence described above and from historical context, the
jury reasonably could have concluded that a wrongful act of the type alleged
actually occurred. Cabello’s wounds comport with other politically motivated
killings during Pinochet’s coup, such that a jury could reasonably conclude that
Cabello was the victim of a crime against humanity, mistreatment, torture, or
extrajudicial killing.
Fernández’s substantial assistance in Cabello’s killing, torture, or
mistreatment is adequately supported by the evidence. The jury could reasonably
conclude that Fernández was indirectly liable based on Fernández’s admission that
19
he served as Arellano’s bodyguard. According to the deposition of Enrique Vidal
Aller (“Vidal”), an aide to the garrison’s commander, Fernández bragged that he
was Arellano’s right hand man and that his spiked weapon would be used to
“caress the little pigeons,” which Vidal understood as a threat to the prisoners.
Vidal also saw Fernández enter the office in which prisoner’s files were kept. Dr.
Ivan Murua Chevesich (“Murua”), a prisoner who was being interrogated in that
office, testified that he saw Fernández with Arellano when Arellano selected files
of prisoners and said that they would be “eliminated.” Murua also testified that
those files were marked with red circles. Another witness saw Fernández himself
selecting and reviewing prisoners’ files.
Moreover, the statements attributed to Fernández reflect his knowledge that
he was assisting in wrongful activity. Aside from those statements described
above, Vidal testified that Fernández told him that “you will soon find out” why
his squad was in Copiapó. Fernández was also present when Arellano stated that
certain prisoners would be eliminated.
From these facts, the jury could have reasonably concluded that Fernández
aided and abetted in Cabello’s killing. Because there is sufficient evidence to
support a finding of aiding and abetting, the jury’s general verdict should stand.
The second theory on which Fernández could be found indirectly liable is
20
that of conspiracy. For the jury to find Fernández indirectly liable by means of
conspiracy, the Cabello survivors needed to prove by a preponderance of the
evidence that (1) two or more persons agreed to commit a wrongful act, (2)
Fernández joined the conspiracy knowing of at least one of the goals of the
conspiracy and intending to help accomplish it, and (3) one or more of the
violations was committed by someone who was a member of the conspiracy and
acted in furtherance of the conspiracy. See Halberstam v. Welch, 705 F.2d 472,
481, 487 (11th Cir. 1983).
For proof of the first required criterion, agreement, the jury was presented
with evidence of a common plan – that the officers at Copiapó were in accord that
their goal was to kill prisoners there. Considering the evidence of a plan, in
addition to Fernandez’s comments (such as saying that he was Arellano’s right
hand man and that his spiked weapon would be used to “caress the little pigeons”),
Arellano’s comments (such as saying that prisoners would be “eliminated”), and
Fernández’s involvement with killings before and after Copiapó, the evidence of an
agreement to commit wrongful acts was sufficient.
Evidence at trial also indicated that before Fernández reached Copiapó, his
squad had killed fifteen prisoners in La Serena. As described above, the jury heard
evidence that one of the squad’s objectives was to kill the civilian prisoners whose
21
files were selected by Arellano, likely with the aid of Fernández. Evidence also
showed that following the events alleged in this action, Fernández’s squad
participated in the killing of more civilians in Antofagasta and Calama. A jury
could reasonably conclude that, at the very least, it was foreseeable to Fernández
that Cabello would be tortured and killed by his co-conspirators at Copiapó.
Another reasonable inference from the evidence is that Fernández had actual
knowledge that members of the conspiracy were going to kill Cabello. Thus, the
evidence presented was sufficient to show that Fernández joined the conspiracy
with knowledge of the conspiracy’s plan and with the intent of helping to
accomplish those goals.
Further, it is undisputed that Fernández’s military colleagues, if not
Fernández himself, were responsible for Cabello’s death. Because killing civilians
presumably opposed to the junta is an act in furtherance of the conspiracy, the jury
reasonably could have found the third and final element had been satisfied.
The trial evidence is sufficient to support the general jury verdict based on
any of the possible theories of liability. Since we are bound to uphold the general
verdict if we find any of the theories of liability supported by sufficient evidence,
the jury’s general verdict must stand.
C. Admissibility of Depositions
22
Fernández also appeals the district court’s allowance of several depositions
into evidence. We review evidentiary rulings of the district court for abuse of
discretion. See Palmer v. Bd. of Regents, 208 F.3d 969, 973 (11th Cir. 2000).
At trial, both parties presented videotaped excerpts of the sworn and
transcribed deposition testimony of six Chilean witnesses. These witnesses were
Chilean nationals residing in Chile and were deposed in Chile. Each witness gave
personal accounts of the atrocities in which Fernández participated.
Fernández argues that these depositions considered by the jury were
improperly admitted because they did not comply with the oath provision of
Federal Rule of Procedure 28(b). Subsection (b)(3) of the rule provides that a
deposition may be taken “on notice before a person authorized to administer oaths
in the place where the examination is held, either by the law thereof or by the law
of the United States.” Fed. R. Civ. P. 28(b)(3).
The Cabello survivors respond that Fernández waived his objections,
starting with the fourth deposition. At the commencement of the fourth deposition,
the Cabello survivors responded to Fernández’s previous objections by offering to
procure a Chilean notary authorized to administer oaths under Chilean law.
Because Fernández’s counsel declined this offer, the Cabello survivors argue that
Fernández constructively waived his objection to technical error, citing Federal
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Rule of Civil Procedure 32(d)(3)(B).
Rule 32(d)(3)(B) provides in relevant part: “[e]rrors and irregularities
occurring at the oral examination . . . in the oath or affirmation . . . and errors of
any kind which might be obviated, removed, or cured if promptly presented, are
waived unless seasonable objection thereto is made at the taking of the deposition.”
(emphasis added). The rules distinguish objections to the manner of taking the
deposition from objections as to the substance of the testimony (such as relevancy
or competency) because allowing counsel to wait until trial to object might
encourage sandbagging. See, e.g., Kirschner v. Broadhead, 671 F.2d 1034, 1037-
38 (7th Cir. 1982); Bahamas Agric. Indus., Ltd. v. Riley Stoker Corp., 526 F.2d
1174, 1180-81 (6th Cir. 1975).
Because the defect in the oath could have been cured at the taking of the
deposition, Fernández’s counsel’s refusal to accept the cure constituted a
constructive waiver. The facts of this case fall within the purview of Rule
32(d)(3)(B). Thus, even though Fernández objected at trial, his failure to object at
the taking of the deposition was correctly deemed a waiver. The district court was
well within its discretion in admitting the contested depositions into evidence. We
accordingly affirm the district court’s ruling on this issue.
D. Admissibility of Acts Committed Against Cabello
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Before trial, Fernández moved to exclude all evidence except the “proof . . .
about what interaction he had with Winston Cabello in Copiapó” contending that
“[n]one of the evidence about events outside Copiapó is relevant.” Fernández
claimed that the evidence of mistreatment of other prisoners was unfairly
prejudicial to him. We review the district court’s decision to grant or to deny a
motion in limine for abuse of discretion. See Hendrix v. Raybestos-Manhattan,
Inc., 776 F.2d 1492, 1503 (11th Cir. 1985). The district court has wide discretion
in determining the relevance of evidence produced at trial. See United States v.
Kopituk, 690 F.2d 1289, 1319 (11th Cir. 1982).
The district court found that evidence concerning the other twelve victims in
Copiapó and the killings at the cities visited before and after Copiapó was relevant
to whether Fernández knowingly participated in crimes against humanity and to
whether he conspired to commit or aided and abetted the commission of other
offenses. We agree.
As the Cabello survivors correctly argue, the evidence established a
conspiracy in which Fernández’s squad participated in the killing of at least 72
civilians, including those in Copiapó. The admitted evidence showed that
Fernández was personally responsible for killings in La Serena, just prior to the
incidents in Copiapó and also for acts in Antofagasta and Calama. Further,
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Cabello was one of thirteen men killed and buried together in Copiapó. We find no
abuse of discretion in the trial judge’s ruling that the evidence relating to the
deaths’ of the other prisoners is materially relevant in establishing the theory of
conspiracy.
To prove the claim of crimes against humanity, the Cabello survivors had to
prove a widespread or systematic attack directed against any civilian population.
Additionally, to prove conspiracy or aiding and abetting, at trial, the Cabello
survivors were required to prove that Fernández had knowledge of the death
squad’s illicit purpose. Fernández’s treatment of other prisoners and his
participation in the squad’s activities elsewhere are directly relevant to this
question of liability for both the claims of conspiracy and that of aiding and
abetting.
The evidence relating to the mistreatment or killing of other prisoners is not
only relevant, but essential for the Cabello survivors’ claims of crimes against
humanity and that of conspiracy. Because this evidence was relevant and essential
and the district court had no reason to believe that it would unfairly prejudice the
defendant, admitting the evidence was within its discretion.
III. Conclusion
Upon consideration of the record and the parties’ briefs and oral arguments,
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we agree with the rulings of the district court. We therefore affirm the district
court’s rulings as to all four issues before us.
AFFIRMED.
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ANDERSON, Circuit Judge:
I concur in the result.
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