United States District Court, S.D. Florida
ORDER GRANTING DEFENDANTS' RENEWED MOTION FOR
JUDGMENT AS A MATTER OF LAW 
I. COHN UNITED STATES DISTRICT JUDGE.
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"). 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.
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. 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.
April 3, 2018, after a three-week-long jury trial, the jury
rendered a verdict for Plaintiffs on their TVPA claims. DE
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.
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)-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).
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.
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.
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.
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).
on October 4, 2016, the Court set these cases for trial and
permitted discovery to commence. DE 232.
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
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
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.). 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'" 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.
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.
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.
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.
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. 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.
BY MR. MUNOZ:
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