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Mamani v. Berzain

United States District Court, S.D. Florida

February 14, 2018

ELOY ROJAS MAMANI, et al., Plaintiffs,



         THIS CAUSE is before the Court upon Defendants' Motion in Limine to Exclude Material Concerning the 2009 Trial of Responsibilities in Bolivia [DE 360 in No. 07-22459; DE 337 in No. 08-21063] (“Motion”).[1] The Court has considered the Motion, Plaintiffs' Response and Defendants' Reply, the parties' related submissions, and the record in these cases, and is otherwise advised in the premises. For the reasons stated below, Defendants' Motion is granted in part and denied in part.


         The Trial of Responsibilities (“TOR”) was a 2009 criminal proceeding in Bolivia, in which a series of former military officers and government ministers were tried for their roles in the events of September and October 2003. The various charges included, inter alia, “genocide” and “mistreatment and torture.” See Defendants' Ex. R at 936, 942.[2] Defendants Lozada and Berzaín were charged but never tried, since they had already fled to the United States.[3] DE 360-1 at 1. Plaintiffs seek, in these cases, to present videotaped testimony from the TOR. Defendants have moved in limine to exclude that testimony as inadmissible hearsay. DE 360-1. Plaintiffs counter that the material in question is admissible pursuant to Federal Rule of Evidence 804(b)(1)'s hearsay exception for prior testimony from an unavailable declarant, or, alternatively, pursuant to Rule 807's residual exception. DE 396.



         A. Legal Standard

         Rule 804(b)(1) provides that the prior testimony of an unavailable declarant is not excluded by the rule against hearsay if: A) “[the testimony] was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one;” and B) “is now offered against a party who had-or, in a civil case, whose predecessor in interest had-an opportunity and similar motive to develop it by direct, cross-, or redirect examination.” Here, there is no dispute that the TOR witnesses-all of them Bolivian nationals residing in Bolivia-are well beyond the subpoena power of this Court and thus unavailable, as defined in Rule 804(a)(5)(A). See United States v. Drogoul, 1 F.3d 1546, 1553 (11th Cir. 1993) (foreign nationals located abroad are beyond district court subpoena power). Nor is there any question that the relevant testimony was given in a trial, by witnesses testifying under oath and subject to cross-examination. DE 360-1 at 8; DE 396 at 2. Accordingly, admissibility pursuant to the prior testimony exception hinges on whether the TOR defendants qualify as “predecessor[s] in interest” of the Defendants, and, if so, whether the TOR defendants had “an opportunity and similar motive” to develop their testimony. Fed.R.Evid. 804(b)(1).

         Predecessor in Interest

         The meaning of “predecessor in interest” is a source of some ambiguity. Defendants, understandably, argue for a narrow definition. See DE 360-1 at 8-12. They review the legislative history of Rule 804(b)(1), flagging a 1973 House committee report. Id. at 9. That report demonstrates that the Supreme Court's original draft rule omitted any relational requirement between a party against whom prior testimony is offered and the parties in the earlier proceeding in which the witness testified. See H.R. Rep. No. 650, 93d Cong., 2d Sess. 15 (1973). The “predecessor in interest” language was apparently added during a House committee markup, owing to concerns about the unfairness of using against a party testimony which that party had no opportunity to develop or challenge. Id. Relying upon this history and a plain reading of the text, Defendants contend that the Court should reject a broad construction of “predecessor in interest” and instead define that term to mean something resembling privity. DE 360-1 at 9-12. According to this view, without the privity standard, a “predecessor in interest” would amount to nothing more than a similarly situated party, which, in practice, would mean a party with similar motive to develop or challenge a witness's testimony. Such approach would effectively collapse Rule 804(b)(1)(B)'s two distinct requirements, rendering the “predecessor in interest” provision nugatory. Id. at 12.

         While acknowledging the innate analytical appeal of Defendants' position, the Court cannot ignore that the overwhelming weight of authority is diametrically opposed. The best Defendants can muster is a citation to a single case from the District of Oregon. See DE 360-1 at 10 (citing Edwards v. Techtronic Indus. N. Am., Inc., 2015 WL 3616558, at *11 (D. Or. June 9, 2015) (endorsing privity standard)). In contrast, Plaintiffs observe-and Defendants do not seriously dispute-that every federal appellate court to address the issue has rejected a privity requirement and adopted some permutation of “similarity of motive” to define “predecessor in interest.” See DE 396 at 7; DE 360-1 at 10-11; see also Culver v. Asbestos Defendants (BP), 2010 WL 5094698, at *4 (N.D. Cal. Dec. 8, 2010) (“The Third, Fourth, and Sixth Circuits have all taken the position that the term ‘predecessor in interest' actually adds quite little to the rest of the requirements of the rule . . . . It does not appear that any circuit court has expressly disavowed this interpretation . . . .”). And while the Eleventh Circuit is one of the few circuits not to have weighed in, see Hearn v. McKay, 603 F.3d 897, 904 (11th Cir. 2010), the Court will follow the lead of the other courts of appeals.

         Opportunity and Similar Motive

         Having concluded that application of the hearsay exception hinges on “opportunity and similar motive, ” the Court must interpret that component of the Rule. In so doing, the Court notes that the appellate courts have diverged. Several, including the Ninth and D.C. Circuits, apply an exceedingly permissive standard. According to these courts, if the parties in a prior proceeding and present proceeding merely fall on the same side of an issue, the requirement is satisfied. See United States v. McFall, 558 F.3d 951, 963 (9th Cir. 2009); United States v. Miller, 904 F.2d 65, 68 (D.C. Cir. 1990). Others have followed the Second Circuit's decision in United States v. DiNapoli, 8 F.3d 909 (2d Cir. 1993) (en banc), which imposes a more stringent test. See Battle ex rel. Battle v. Mem'l Hosp. at Gulfport, 228 F.3d 544, 552-53 (5th Cir. 2000); United States v. Bartelho, 129 F.3d 663, 671-72 (1st Cir. 1997).

         In its well-reasoned opinion, the DiNapoli Court held that: “The test must turn not only on whether the questioner is on the same side of the same issue at both proceedings, but also on whether the questioner had a substantially similar interest in asserting that side of the issue.” 8 F.3d at 912 (emphasis added). As the Second Circuit explained: “If a fact is critical to a cause of action at a second proceeding but the same fact was only peripherally related to a different cause of action at a first proceeding, no one would claim that the questioner had a similar motive at both proceedings to show that the fact had been established (or disproved).” Id.

         The Court finds DiNapoli to be persuasive. For “similar motive” to have any reasonable meaning, it must account for the degree of importance attached to an issue at both proceedings. The Court observes that, while the Eleventh Circuit has not explicitly adopted the DiNapoli standard, it has cited DiNapoli approvingly. See United States v. Miles, 290 F.3d 1341, 1352-53 (11th Cir. 2002). Therefore, in determining admissibility of the TOR testimony, the Court will review each category of disputed testimony and assess not only whether the TOR defendants and Defendants in these cases were on the same side of the key issues, but also whether the TOR defendants had a “substantially similar interest” in asserting their side of those issues.

         Finally, the Court notes that Plaintiffs, as the parties offering hearsay evidence, bear the burden of demonstrating admissibility. United States v. Acosta, 769 F.2d 721, 723 (11th Cir. 1985) (“The burden of proving the unavailability of a witness under Rule 804(a) rests with the proponent of the hearsay evidence . . . .”); United States v. Amato, 2006 WL 1788190, at *1 (E.D.N.Y. June 26, 2006) (party seeking to admit prior testimony must prove each element of hearsay exception by a preponderance of the evidence). With these principles in mind, the Court will analyze each category of challenged testimony to determine whether it qualifies for the Rule 804(b)(1) exception.

         B. Analysis

         1. Testimony as to the Absence of a Guerilla Force in Bolivia

         Plaintiffs offer testimony from several TOR witnesses that no armed guerilla movements operated in Bolivia during September and October of 2003. DE 396 at 12; Plaintiffs' Ex. 9 at 3 (TOR transcript of former Commander of the National Police Jairo Sanabria Gonzales), Ex. 10 at 1-2 (TOR transcript of military intelligence officer Jorge Botelo Monje), Ex. 11 at 6-7 (TOR transcript of former National Director of Intelligence Fernando Uribe Encinas).[4] Defendants argue that this testimony fails the Rule 804(b)(1) standard, because the TOR defendants' questioning of these witnesses was insufficient. DE 397 at 5-6. Defendants stress that, had they been able to ...

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