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

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ANA CHAVEZ, CECILIA SANTOS, JOSE

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CALDERON, ERLINDA FRANCO, and DANIEL

ALVARADO, -

Plaintiffs-Appellees, -

No. 06-6234

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>

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v.

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NICOLAS CARRANZA,

Defendant-Appellant. -

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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.

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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.

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OPINION

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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.

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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

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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

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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

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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

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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

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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

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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.

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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.

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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

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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.