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Mamani v. Sanchez Berzain

United States District Court, S.D. Florida

May 30, 2018

ELOY ROJAS MAMANI, et al., Plaintiffs,



         THIS CAUSE is before the Court upon Defendants' Renewed Motion for Judgment as a Matter of Law [DE 501 in No. 07-22459; DE 475 in No. 08-21063] ("Motion").[2] The Court has carefully considered the Motion, Plaintiffs' Response and Defendants' Reply, the arguments of counsel on March 19 and 23, 2018, and the record in these cases, and is otherwise advised in the premises. For the reasons set forth below, Defendants' Motion is granted.


         These cases concern the Bolivian government's alleged massacre of its own civilians during a period of civil unrest in Bolivia in 2003. Plaintiffs-nine Bolivian residents and citizens-are the relatives of eight Bolivian civilians allegedly killed deliberately by the Bolivian military.[3] The crux of Plaintiffs' claims is that two former high-ranking Bolivian government officials-the former President, Gonzalo Daniel Sanchez de Lozada Sanchez Bustamante ("Defendant Lozada"), and the former Minister of Defense, Jose Carlos Sanchez Berzain ("Defendant Berzain")- masterminded a violent military campaign that led to Plaintiffs' relatives' deaths, all in an effort to quell public opposition to their unpopular political agenda. Based on these allegations, Plaintiffs brought claims against Defendants for extrajudicial killings under the Torture Victim Protection Act of 1991 ("TVPA"), Pub. L. No. 102-256, 106 Stat. 73 (codified at 28 U.S.C. § 1350 note), and for intentional wrongful death under state law.

         On April 3, 2018, after a three-week-long jury trial, the jury rendered a verdict for Plaintiffs on their TVPA claims. DE 474.[4] The jury awarded Plaintiffs a total of $10 million dollars in compensatory damages, but declined to award any punitive damages. Id. Defendants now argue that Plaintiffs failed to present a legally sufficient evidentiary basis for the jury's verdict, and therefore seek judgment as a matter of law.


         A. Pleadings

         This litigation has a lengthy procedural history, which is detailed in the Court's Order Denying Defendants' Joint Motion for Summary Judgment, Mamani v. Berzain, ___ F.Supp.3d ___ 2018 WL 2013600, at *11-12 (S.D. Fla. Feb. 14, 2018), and need not be repeated in full here. One aspect of the history of this litigation, however, is worth highlighting given its significance to the issues raised in Defendants' Motion. That is, the evolution of Plaintiffs' claims from their 2008 Amended Complaint [DE 77]-which the Eleventh Circuit held "allege[d] no facts showing that the deaths in this case met the minimal requirement for extrajudicial killing." Mamani v. Berzain, 654 F.3d 1148, 1155 (11th Cir. 2011)[5]-to their 2013 Second Amended Complaint [DE 174], which this Court held "alleged facts plausibly suggesting that [Plaintiffs'] relatives' deaths were extrajudicial killings" under the TVPA. Mamani v. Berzain, 21 F.Supp.3d 1353, 1374 (S.D. Fla. 2014).

         In Plaintiffs' 2008 Amended Complaint, they alleged that in response to protests in Bolivia in 2003, Defendants "order[ed] Bolivian security forces, including military sharpshooters armed with high-powered rifles and soldiers and police wielding machine guns, to attack and kill scores of unarmed civilians." DE 77 ¶ 1. Plaintiffs specifically alleged that in each part of the country where their relatives were killed, and on the days in September and October 2003 when they were killed, soldiers fired upon civilians without justification. See id. ¶¶ 38-39 (alleging that on September 20, 2003, the Bolivian military shot from a helicopter at villagers below in Warisata and attacked civilians there with sharpshooters and machine guns); Id. ¶ 54 (alleging that on October 12, 2003 in El Alto, soldiers "took up firing positions ... and began shooting directly at civilians in the road with rifles and machine guns"); Id. ¶ 63 (alleging that on October 13, 2003 in La Paz, "[t]he military opened fire [at villagers] with rifles and machine guns, and the villagers fled in different directions, " with "[t]he military continuing] to fire on the fleeing villagers."). Plaintiffs described these acts as "part of a pattern and practice of systemic and widespread attacks and human rights violations committed against the civilian population in Bolivia from September to October 2003, for which Defendants bear responsibility." Id. ¶ 78. As noted above, the Eleventh Circuit held that these allegations were insufficient to make out a plausible claim for extrajudicial killings. Mamani, 654 F.3d at 1155.

         The Eleventh Circuit explained that the TVPA defines an extrajudicial killing as a "deliberated killing." Id. at 1154 (citing TVPA § 3(a)). A deliberated killing is one that is "undertaken with studied consideration and purpose." Id. at 1155. The Eleventh Circuit reasoned that Plaintiffs alleged no facts showing that decedents' deaths were deliberated, and that "[o]n the contrary: even reading the well-pleaded allegations of fact in the [Amended] Complaint in plaintiffs' favor, each of the plaintiffs' decedents' deaths could plausibly have been the result of precipitate shootings during an ongoing civil uprising." Id. That is, given the fact that the decedents were killed during a time of "significant conflict" in Bolivia involving trapped travelers, thousands of protestors, and a blockade of major highways to the nation's capital, the Eleventh Circuit noted that

alternative explanations (other than extrajudicial killing) for the pertinent seven deaths easily come to mind; for instance, the alleged deaths are compatible with accidental or negligent shooting (including mistakenly identifying a target as a person who did pose a threat to others), individual motivations (personal reasons) not linked to defendants, and so on.

Id. Finally, the Eleventh Circuit went on to contrast the killings at issue in this litigation with the killing at issue in Cabello v. Femandez-Larios, 402 F.3d 1148 (11th Cir. 2005) (per curiam), which involved a former military officer defendant personally commanding a "killing squad" that killed civilian prisoners. The Eleventh Circuit held that "[t]he specific targeting of the victim based on his political beliefs, direct involvement of the defendant, and premeditated and deliberate circumstances of the victim's death set Cabello apart from the facts alleged in this case." Mamani, 654 F.3d at 1155 n.9.

         After the Eleventh Circuit instructed this Court to dismiss Plaintiffs' Amended Complaint, Plaintiffs filed their Second Amended Complaint on June 24, 2013. DE 174. Critically, Plaintiffs' Second Amended Complaint included for the first time the allegation that Defendants entered office with a preconceived plan to deliberately kill civilians in order to suppress opposition to their economic policies. Specifically, Plaintiffs alleged that Defendants "took office .. . intending to impose controversial economic programs" and that "[t]hey knew that these programs, particularly a plan to export gas through Chile, would trigger political protests." Id. ¶ 2. Given their awareness "that, in the past, political protests had successfully pressured past governments to change unpopular policies, " Defendants allegedly decided "to use unlawful, lethal military force against Bolivian civilians to ensure that the anticipated protests would not derail their unpopular plans." Id. ¶¶ 2-3. Plaintiffs further alleged that "Defendants made a conscious decision that thousands of unlawful killings would be both necessary and acceptable to deter protests, " and that "in a meeting before the 2002 elections, Defendants agreed that they would have to kill 2, 000 or 3, 000 people in order to ensure that popular opposition would not block their proposals." Id. ¶ 4. Plaintiffs went on to describe how Defendants implemented their alleged plan, and how the deaths of decedents and approximately fifty others were the "intended result of Defendants' plan to use systematic unlawful killings to quash and deter opposition to their economic programs." Id. ¶¶ 5-7. In sum, Defendants' alleged plan to kill civilians was the centerpiece of Plaintiffs' Second Amended Complaint.

         When Defendants moved to dismiss Plaintiffs' Second Amended Complaint, Plaintiffs argued in response that the Second Amended Complaint "contain[ed] copious new factual allegations directly showing that Defendants developed and executed an unlawful plan that led to the deaths of Plaintiffs' family members, " and noted that these allegations "were not part of the [2008 Amended Complaint] and respond directly to the omissions identified by the Eleventh Circuit." DE 189 at 2. In fact, when discussing the differences between the Amended Complaint and the Second Amended Complaint, Plaintiffs stated that "[m]ost important, the [Second Amended Complaint] contains factual allegations that the two Defendants repeatedly discussed their plan to kill civilians . . .." Id. at 27. Given these new allegations that decedents' deaths were the intended result of Defendants' alleged preconceived plan, the Court denied Defendants' motion to dismiss Plaintiffs' TVPA claims and held that Plaintiffs had sufficiently alleged that decedents' deaths were deliberated, and therefore extrajudicial killings. Mamani, 21 F.Supp.3d at 1373-75. On appeal, the Eleventh Circuit exercised its discretion not to decide the issue of whether the Second Amended Complaint stated a claim for extrajudicial killings under the TVPA. Mamani v. Berzain. 825 F.3d 1304, 1312-13 (11th Cir. 2016).

         Thereafter, on October 4, 2016, the Court set these cases for trial and permitted discovery to commence. DE 232.

         B. Summary Judgment

         On November 28, 2017, after approximately a year of discovery, Defendants moved for summary judgment on all of Plaintiffs' claims. DE 342. Defendants argued, inter alia, that the summary judgment record contained no evidence that any of Plaintiffs' relatives were intentionally killed by the Bolivian military. See DE 342-1. Specifically, Defendants argued that no reasonable jury could conclude that the killings at issue were deliberated because Plaintiffs could not identify the specific individuals who shot each decedent, much less present any evidence concerning whether those unknown individuals shot the decedents intentionally. Id. at 18.

         In response, Plaintiffs argued that they were not required to identify the specific individuals who shot each decedent because, even lacking such evidence, the summary judgment record still sufficiently supported a finding that the decedents were killed deliberately given evidence of Defendants' preconceived "plan to use military force to kill unarmed civilians in order to suppress civilian protests and deter opposition to their policies." DE 375 at 11, 14. Plaintiffs claimed that evidence suggesting that the decedents' deaths resulted from the implementation of Defendants' alleged plan-which had "the explicit goal of killing civilians"-was sufficient to support a finding that the killings were deliberated. Id. at 11-12.

         Although Defendants' alleged plan to kill civilians was central to Plaintiffs' theory of the case, Plaintiffs' only evidence of the existence of this plan was the Declaration of Victor Hugo Canelas Zannier. DE 375-10 (Canelas Decl.).[6] In his declaration, Mr. Canelas stated that he was present at a meeting in 2001 at Defendant Lozada's home where Defendant Berzaln said that, when he and Defendant Lozada came into power, they would "avoid the problems that President Hugo Banzer Suarez faced during the 'Water War'"[7] by using trained troops from eastern Bolivia (as opposed to conscripts) to confront protesters, and that "it would be necessary to 'kill two or three thousand people.'" Id. ¶¶4-6. According to Mr. Canelas' declaration, Defendant Lozada "indicated that he approved of what [Defendant] Berzaln said." Id. ¶ 7.

         Ultimately, the Court agreed with Plaintiffs that, at the summary judgment stage, this evidence of Defendants' alleged plan to kill civilians, together with circumstantial evidence that the decedents' deaths resulted from the implementation of this plan, was sufficient to raise a jury question as to whether decedents' deaths were extrajudicial killings. Mamani, ___ F.Supp.3d, ___ 2018 WL 2013600, at *18-20. Specifically, the Court held that "a reasonable jury, considering the evidence of Defendants' plan to kill civilians to quash public opposition to their policies, could find that decedents' deaths were deliberated because they were the expected and desired outcome of this plan." Id. at *18. The Court explained that, "given the totality of the [summary judgment] evidence"-from which the Court was required to draw all reasonable inferences in the light most favorable to Plaintiffs-a jury could reasonably infer that decedents' deaths resulted from the implementation of Defendants' plan to kill civilians based on five pieces of evidence:

(1) changes in Bolivian military doctrine during Defendant Lozada's administration to define protesters as subversives who could be targeted with military force; (2) a pattern of soldiers being ordered to shoot unarmed civilians in multiple different locations, including each location where decedents were killed, on multiple different dates; (3) a pattern of soldiers shooting indiscriminately at civilians at times when witnesses saw no armed protesters or anything indicating that the soldiers were firing defensively; (4) Defendants' repeated refusal to seriously commit to achieving peaceful, negotiated solutions to protests; and (5) consistent with Defendants' plan, the utilization of troops from Eastern Bolivia.


         In sum, given Plaintiffs' evidence that (1) a plan to kill civilians existed and (2) decedents' deaths resulted from the implementation of this plan by the Bolivian military, the Court held that Plaintiffs could withstand summary judgment despite their inability to present any witnesses who saw the individuals who shot each decedent. Id.

         C. Trial

         The Court held a jury trial beginning on March 5, 2018. DE 438. During the course of trial, Plaintiffs presented at least some circumstantial evidence in each of the five categories that the Court, in its summary judgment Order, had held-if accepted by the jury-could permit the reasonable inference that the decedents deaths' resulted from the Bolivian military's implementation of a plan to kill civilians. But critically, Plaintiffs failed to present any evidence that such a plan actually existed.

         At trial, like at summary judgment, Mr. Canelas was the only witness offered by Plaintiffs to testify regarding a plan to kill civilians. But Mr. Canelas did not testify at trial according to his earlier summary judgment declaration. While he testified about the meeting at Defendant Lozada's home where Defendant Berzain made a comment about using troops from eastern Bolivia to kill civilians, rather than offer admissible testimony that Defendant Lozada indicated his approval of this comment, Mr. Canelas only testified that Defendant Lozada responded "This is over" and then "just adjourned the meeting." DE 482 at 92:6-12 (3/14/18 Trial Tr.). Despite repeated prodding by Plaintiffs' counsel, Mr. Canelas did not offer any admissible testimony that Defendant Lozada approved of Defendant Berzain's comment or otherwise indicated any agreement to a plan to kill civilians.[8] Mr. Canelas' trial testimony is set forth below in relevant part:

A: ... It was in [Defendant Lozada's] residence. It is a meeting where I approach, and I hear Carlos Sanchez Berzain. In Bolivia, in the year 2000, under the government of Banzer, what was known as the Water War, where the people of Cochabamba opposed the privatization of water, and Banzer uses force in the attempt to repress them. And I heard Carlos Sanchez Berzain say, "It's not going to happen to us as it happened to Banzer." Banzer used soldiers without what we call in Bolivia mostrencos. Mr. Sanchez Berzain continues, and he says, "What we're going to use are elite troops, troops from the Beni, and we will kill 50, a hundred, a thousand." Upon hearing that I said to the people that were gathered there, but I was addressing Sanchez Berzain, that if it were a matter of killing people, dictatorships would have lasted forever.
Q: What happens after that?
A: [Defendant Lozada] adjourns that meeting, because other people are now arriving. He says to everyone and he says to ...

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