Opposition Brief — Carranza v. Chavez (No. 08-1467)

[ Supre. Voult, Jw.

FILED

(3) JUN 2.9 2009

OFFICE OF Trit CLE:HK

No. 08-1467

In The

Supreme Court of the Gnited States

NICOLAS CARRANZA,

Petitioner,

ws

ANA CHAVEZ, CECILIA SANTOS, JOSE CALDERON,

ERLINDA FRANCO, anp DANIEL ALVARADO,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

BRIEF IN OPPOSITION

Davin R. ESQuIVEL CAROLYN PATTY BLUM

Counsel of Record CENTER For JUSTICE AND

STEPHEN J. JASPER ACCOUNTABILITY

Bass, BERRY & Sims PLC 870 MARKET STREET

315 DEADERICK STREET SUITE 688

SuITE 2700 SAN Francisco, CA 94102

NASHVILLE, TN 37238

(615) 742-6200

Counsel for Respondents

Becker Gallagher + Cincinnati OH - Washingten, D.C. + 800.890.5001

i

QUESTION PRESENTED FOR REVIEW

1. Should a United States court exercise jurisdiction

over claims asserted by United States and foreign

citizens against a United States citizen pursuant to

the Ahen Tort Statute, 28 U.S.C. Sec. 1350, and the

Torture Victim Protection Act, Note to 28 U.S.C.

Sec. 1350, when the defendant might be immune

from suit in E] Salvador based upon a Salvadoran

law that provides amnesty from claims brought in

FE! Salvador?

ii

TABLE OF CONTENTS

Page

Question Presented for Review ................. i

SS ii

Mme Of Authorities............... 0c ec eenee iv

Statement of the Case ....................... 1

I. Facts of thiscase ................... 1

II. Proceedings in this case ............. I

Reasons for Denying the Petition .............. 3

‘ Carranza does not allege any Rule 10

reason for granting his petition for

nas. ok e oreo 60d Se we eo 3

II. The jurisdiction granted by the ATS and

TVPA extends to thiscase ........... 5

III. This Court’s decision in F. Hoffman-

LaRoche v. Empagran does not support

Carranza’s petition for certiorari ...... /

IV. International comity principles do not

require this Court to reverse the Sixth

ee Ses ee a wie he aes 9

Conclusion

ili

Carranza cannot invoke international

comity principles in his defense

because he did not prove his

entitlement to amnesty under the

Salvadoran Amnesty Law .........

. Carranza cannot invoke international

comity principles because the ATS

and TVPA do not conflict with the

Salvadoran Amnesty Law ........

Even if international comity

principles applied to Plaintiffs’ claims,

the practical consequences of letting

the Sixth Circuit’s decision stand do

not provide adequate grounds to grant

CLOrreanvA 6 PONUON . 2. eae: .

1. Carranza’s speculatien about the

practical consequences of letting

the Sixth Circuit’s decision stand

is not supported by recent history

or the facts of Plaintiffs’ case .. .

2. Carranza’s speculation relies on

an abuse of the judicial notice

I 5 Co Se ee eee

12

14

14

iv

TABLE OF AUTHORITIES

Cases

Arce v. Garcia,

434 F.3d 1254 (11th Cir. 2006) ......

Berry v. City of Detroit,

25 F.3d 1342 (6th Cir. 1994) ........

BMW Stores, Inc. v. Peugeot Motors

of America, Inc.,

860 F.2d 212 (6th Cir. 1988) ........

Crawford-El v. Britton,

eee GP, OP RROD 6 oo eee ce sees

Dixon v. United States,

ER By arse

Doe v. Saravia,

348 F. Supp. 2d 1112 (E.D. Cal. 2004)

F. Hoffman-LaRoche v. Empagran,

De Ae, BO OED on ik ee sees

Ford ex rel. Estate of Ford v. Garcia,

289 F.3d 1283 (11th Cir. 2002),

cert. denied, 537 U.S. 1147 (2003) ....

Harlow v. Fitzgerald,

OOF We RAE? oc ee ee

Hartford Fire Ins. Co. v. Cal.,

ee ee PCE OT 6 eee ee anys

Page(s)

Vv

In re Maxwell Commc’n Corp.,

G3 F.3a 1000 (2d Cir. 1966)... ec eka 4

In re Simon,

oe © cou wes (ts Cir. I98G) «wc ee es 4

Soctete Nationale Industrielle Aerospatiale v.

United States Dist. Court for S. Dist. of Iowa,

Se te PD 5 oe ee cs we eb es 4,12

Sosa v. Alvarez-Machain,

Ue Wa WOON OOE) ove ence ep ens 4,5, 6,14

Statute

ee ae a. Sk kk pA ee ee ee passim

Rules

GES ee) | Lc re re PS 18

ee i a i nk a wc a we ee

1

STATEMENT OF THE CASE

I. Facts of this case.

A United States jury found Nicolas Carranza liable

for his role in gross human rights violations, including

torture of the plaintiffs, extrajudicial killing of the

plaintiffs’ relatives, and crimes against humanity, and

awarded the plaintiffs compensatory and punitive

damages. Carranza now seeks to avoid this liability.

For a further statement of the facts of this case,

Respondents hereby incorporate by reference the

“Background” section of the opinion rendered in this

case by the United States Court of Appeals for the

Sixth Circuit. (App. to Pet. for Writ of Cert. 3a-5a.)

Il. Proceedings in this case.

Before beginning the trial on the merits, the United

States District Court for the Western District of

Tennessee ruled as a matter of law that the case

should not be dismissed on comity grounds. The court

ruled that the Salvadoran Amnesty Law neither

prohibits legal claims filed outside El] Salvador nor

conflicts with the Alien Tort Statute, 28 U.S.C. Sec.

1350 (“ATS”), or the Torture Victim Protection Act,

Note to 28 U.S.C. Sec. 1350 (““TVPA”). (App. to Pet. for

Writ of Cert. 8la-93a.)

At no time during the district court proceedings did

Carranza satisfy his burden of proving the affirmative

defense that the Salvadoran Amnesty aw barred the

plaintiffs from bringing their claims in a United States

court. Carranza did not even submit the text of the

Salvadoran Amnesty Law to the court in support of his

2

pre-trial dispositive motions or at any time during the

trial in this case. Throughout the proceedings,

Carranza failed to present any evidence to prove his

entitlement to amnesty in the United States or even in

El Salvador. Indeed, Carranza now argues that the

amnesty law does not necessarily apply to cases, such

as this one, that involve “fundamental human rights.”

(Pet. for Writ of Cert. 12.)

At the conclusion of the trial, which took place over

the course of three weeks in 2005, the jury returned a

six million dollar verdict in favor of Plaintiffs Cecilia

Santos, Jose Calderon, Erlinda Franco, and Daniel

Alvarado (“Plaintiffs”). (App. to Pet. for Writ of Cert.

28a-30a.) Following the trial, the district court denied

Carranza’s motion for judgment notwithstanding the

verdict, new trial, and/or remittitur. Ud. at 25a-51a.)

Carranza appealed the district court’s decision to the

Sixth Circuit.

In his appellate brief, Carranza argued that “[t]he

Standard of Review regarding the application of the

Doctrine of Comity is whether or not the Court abused

its discretion in failing to apply the Doctrine of

Comity.” Carranza thereby waived his right to claim

at this stage that the Sixth Circuit should have applied

a de novo standard of review to the district court’s

comity analysis.

The Sixth Circuit heard oral argument by the

parties and by amicus, the Republic of El Salvador, on

October 28, 2008. At oral argument, counsel for the

Republic of El Salvador reluctantly admitted that the

United States Department of State did not accept his

request to participate in the appeal.

3

The Sixth Circuit unanimously affirmed the jury’s

verdict on March 17, 2009. (App. to Pet. for Writ of

Cert. la-24a.)

REASONS FOR DENYING THE PETITION

I. Carranza does not allege any Rule 10 reason

for granting his petition for certiorari.

Nicolas Carranza’s petition for certiorari fails to

state any reason set forth in Rule 10 of the Rules of the

United States Supreme Court to justify granting his

petition. Carranza has merely petitioned this Court to

right what he incorrectly believes to be a

misapplication of a properiy stated rule of law.

Carranza’s petition does not, and cannot, claim (1)

that any decisions of the United States courts of

appeals are in conflict on the issues presented by his

petition, (2) that any such conflict exists between the

decisions of the courts of appeals and any decision ofa

state court of last resort, (3) that the decisions of the

lower courts in this matter decided an important

question of federal law that has not been, but should

be, decided by this Court, or (4) that the lower courts’

decisions conflict with any relevant decisions of this

Court. See SUP. CT. R. 10.

Carranza cannot allege any relevant splits in

judicial authority because the law of international!

comity, which lies at the foundation of Carranza’s

petition, is well-settled in the United States. As this

Court has heid, principles of international comity do

not affect a United States court’s application of

domestic law where there is no true conflict between

such law and any relevant foreign law. Hartford Fire

4

Ins. Co. v. Cal., 509 U.S. 764, 798-99 (1993); Societe

Nationale Industrielle Aerospatiale v. United States

Dist. Court for S. Dist. of Iowa, 482 U.S. 522, 555

(1987) (“[T]he threshold question in a comity analysis

is whether there is in fact a true conflict between

domestic and foreign law.”) (Blackmun, J., concurring

in part and dissenting in part); see also In re Simon,

153 F.3d 991, 999 (9th Cir. 1998) (“(Gleneral principles

of international comity .. . [aJre limited to cases in

which ‘there is in fact a true conflict between domestic

and foreign law.”); In re Maxwell Commce’n Corp., 93

F.3d 1036, 1049 (2d Cir. 1996) (“International comity

comes into play only when there is a true conflict

between American law and that of a _ foreign

jurisdiction.”). Carranza does not question Hartford

Fire’s authority or suggest that the lower courts have

divided when interpreting it. Carranza merely argues

that the Sixth Circuit misapplied Hartford Fire to the

facts of this case.

Carranza similarly does not allege any split in

judicial authority concerning the _ prudential

considerations that guide a court’s decision whether to

apply United States law when confronted with an

allegedly conflicting foreign law. Rather, Carranza

appropriately cites this Court’s 2004 decision in Sosa

v. Alvarez-Machain, 542 U.S. 692 (2004), as the

authority enumerating such considerations.

Unable to allege any split in judicial authority

related to the issues he presented to the district court

and the Sixth Circuit Court of Appeals, Carranza

merely seeks a reversal of the Sixth Circuit’s decision,

which he claims misapplied the precedents this Court

set forth in Hartford Fire and Sosa. As Rule 10 makes

clear, however, a “petition for a writ of certiorari is

5

rarely granted when the asserted error consists of .. .

the misapplication of a properly stated rule of law.”

SUP. CT. R. 10.

Having stated no Rule 10 reason for granting a

petition for certiorari and relying merely on the

assertion that the Sixth Circuit’s decision misapplied

the well-settled law of international comity, Carranza’s

petition should be denied.

II. The jurisdiction granted by the ATS and

TVPA extends to this case.

Carranza’s assertion that the jurisdiction granted

by the ATS and TVPA does not extend to this case

ignores the clear language of both statutes and the

facts at the heart of this case. Moreover, Carranza’s

attempt to overcome the weakness of his jurisdictional

argument by simultaneously arguing that he is

protected by the Salvadoran Amnesty Law for the

purpose of the comity analysis and unprotected by the

same law for the purpose of an untimely exhaustion of

remedies defense is inherently contradictory and

without merit.

The TVPA creates a civil cause of action for

damages against any person who “subjects an

individual to torture .. . or subjects an individual to

extrajudicial killing.” Note to 28 U.S.C. Sec. 1350

The ATS provides courts in the United States with

jurisdiction over claims by aliens injured by a tort

“committed in violation of the law of nations or a

treaty of the United States.” 28 U.S.C. Sec. 1350. As

stated in this Court’s decision in Sosa v. Alvarez

Machain, Congress’s enactment of the TVPA

6

confirmed the jurisdictional reach of the ATS to

encompass claims based upon torture and extrajudicial

killing. 542 U.S. 692, 727-28 (2004).

In Sosa, this Court meticulously reviewed the

history of the ATS. Jd. at 712-38. For nearly two

hundred years following its enactment, the ATS

conferred jurisdiction over only three widely-accepted

common law causes of action: violation of safe

conducts, infringement of the rights of ambassadors,

and piracy. Jd. at 712, 724. When Congress passed

the TVPA, however, it confirmed the federal courts’

recent articulation of a broader jurisdictional reach for

the ATS. The TVPA provides “a clear mandate .

that establishes an unambiguous and modern basis for

federal claims of torture and extrajudicial killing.” Jd.

at 727-28.

Plaintiffs Cecilia Santos and Daniel Alvarado were

brutally tortured in El Salvador, and both Erlinda

Franco’s husband and Jose Calderon’s father were

murdered by the Salvadoran military. The jury found

the torture of Alvarado and the assassination of

Franco to be crimes against humanity. In light of

Sosa, Carranza’s claim that the ATS and TVPA do not

extend to Plaintiffs’ claims simply rings hollow. To the

contrary, Congress expressly intended the acts

inflicted upon Plaintiffs to lie at the very core of these

two statutes.

Carranza attempts to sidestep Sosa’s

straightforward holding on the jurisdictional reach of

the ATS by focusing not on the language of the two

statutes or the facts underlying Plaintiffs’ claims but,

rather, on considerations of comity and “full faith and

credit.” Such considerations, which will be addressed

7

in subsequent sections of this brief, have no bearing

upon the jurisdiction granted by the ATS and the

TVPA. Simply put, this suit was brought in a United

States court by United States citizens and aliens

against a United States citizen pursuant to two United

States statutes expressly intended to address torture

and murder. The jurisdiction granted by the ATS and

TVPA clearly extends to this case.

In a further attempt to overcome the weakness of

his jurisdictional argument, Carranza alternately

asserts the jurisdiction of the TVPA does not extend to

this case because Plaintiffs failed to exhaust their

Salvadoran remedies before initiating this action.

During the proceedings at the district court level,

however, Carranza conceded that Plaintiffs’

Salvadoran remedies had been exhausted because the

Salvadoran Amnesty Law would bar all suits against

Carranza in El Salvador. Having already conceded

this point, Carranza has waived and cannot now assert

his right to an exhaustion defense. Even if Carranza

had not waived his exhaustion defense, he could not

now simultaneously claim to be protected by the

Salvadoran Amnesty Law for the purpose of his comity

analysis and unprotected by the Salvadoran law for

the purpose of an exhaustion defense.

Ill. This Court’s decision in F. Hoffman-

LaRoche v. Empagran does not support

Carranza’s petition for certiorari.

Carranza’s reliance on F. Hoffman-LaRoche v.

Empagran, 542 U.S. 155 (2004), upon which he bases

the first of his two arguments for granting his petition,

is misplaced both factually and legally.

8

Empagran concerned the application of the Foreign

Trade Antitrust Improvements Act (“FTAIA”) to alien

plaintiffs seeking to use United States courts to

redress anticompetitive conduct that caused only

foreign injury. 7d. at 158. In Empagran, piaintiff

citizens of the Ukraine, Australia, Ecuador and

Panama each bought vitamins from defendants wholly

outside of the United States and then attempted to

bring price-fixing claims in United States courts under

the authority of the Sherman Act. Jd. at 159-160.

With no explanation or justification, Carranza

asserts that Empagran “describes perfectly [Plaintiffs],

in the context of anti-trust instead of tort.” (Pet. for

Writ of Cert. 17.) Even the most cursory comparison

of the Empagran facts to the facts in this case reveals

how dramatically Carranza overstates his point. As

Carranza notes, Empagran dealt solely with “claims

that included foreign conduct with strictly foreign

repercussions.” (Ud. at 16.) Incontrast, Plaintiffs’ case

against Carranza includes two United States citizens

suing a United States citizen under the authority of

two United States statutes that grant domestic

remedies to Plaintiffs that in no way affect El

Salvador’s legal regime. Far from exactly describing

Plaintiffs, the Empagran facts describe a scenario

bearing little, if any, relevance to Plaintiffs’ case.

Empagran’s legal analysis is also irrelevant to

Plaintifts’ case. The FTAIA expressly excludes from

the Sherman Act’s reach much anticompetitive conduct

that causes only foreign injury, and the Court’s opinion

is entirely concerned with Congress’s express intent

for the Sherman Act not to apply to a subset of foreign

commercial activity. See Empagran, 542 U.S. at 158.

The ATS and TVPA contain no comparable territorial

9

limitation. To the contrary, both statutes expressly

grant access to the federal courts to plaintiffs seeking

to redress torture and extrajudicial killings that took

place in foreign nations. As the Sixth Circuit held in

its opinion below, “Empagran is of little relevance to

the law at issue in this case.” (App. to Pet. for Writ of

Cert. 15a.) The defendant’s interpretation of

Empagran would eviscerate the intent, purpose,

meaning, and scope of the two statutes.

IV. International comity principles do not

require this Court to reverse the Sixth

Circuit.

A. Carranza cannot invoke international

comity principles in his defense because

he did not prove his entitlement to

amnesty under the Salvadoran Amnesty

Law.

International comity principles could not have

affected the district court’s exercise of jurisdiction over

Plaintiffs’ claims because Carranza failed to prove he

would have been entitled to amnesty if Plaintiffs had

sued him in El Salvador.

Any defendant asserting an amnesty defense bears

the burden of proving entitlement to the amnesty

because the protection of a law of general amnesty

functions as an affirmative defense. See Dixon v.

United States, 548 U.S. 1, 8 (2006) (noting that the

common law burden of proving affirmative defenses

rests on the defendant); cf. Crawford-Eil v. Britton, 523

U.S. 574, 587 (1998) (“[Q]ualified immunity is an

affirmative defense and. . . the burden of pleading it

rests with the defendant.”) (quotations omitted);

10

Harlow v. Fitzgerald, 457 U.S. 800, 812 (1982) (“The

burden of justifying absolute immunity rests on the

official asserting the claim.”). As with any affirmative

defense, if a defendant does not prove his or her

entitlement to be covered by an amnesty law, a

plaintiffs claims against him or her will not be barred,

and the defendant will have to stand trial.

Throughout the proceedings in the district court,

Carranza ignored his burden of proof. Carranza never

introduced facts into the record to prove his

entitlement to amnesty and, remarkably, never even

entered the text of the Salvadoran Amnesty Law into

the record as evidence.’ Moreover, Carranza now

suggests in his petition for certiorari that he could

stand trial for his actions in E] Salvador. In response

to the Sixth Circuit’s “speculation” that Plaintiffs’

claims against him would be barred in El Salvador,

Carranza’s petition counters that “the Supreme Court

of El Salvador has specifically inferred the discretion

of Salvadoran courts to waive the immunity of the

Amnesty Law in _ particular cases. involving

‘fundamental human rights.” (Pet. for Writ of Cert.

12.) By suggesting today that he might not be

protected by the Salvadoran Amnesty Law were he to

be sued for the same or similar acts in El Salvador,

Carranza highlights his failure to prove his

entitlement. to an amnesty defense.

' The ‘full text of the Salvadoran Amnesty Law was submitted in

this case only after the Sixth Circuit specially requested a copy of

the law from the defendant just days before oral argument on

appeal.

11

Carranza also misleads this Court by suggesting

that the lower courts equitably tolled the statute of

limitations in this case due to his immunity from suit.

The equitable tolling decision was’ grounded

completely in evidence of continning violence in FE]

Salvador that prohibited Plaintiffs from safely

pursuing their case. It was not based in any way upon

Carranza proving his entitlement to immunity. (App.

to Pet. for Writ of Cert. 10a-12a.)

Carranza further misleads this Court by suggesting

the district court prevented him from proffering the

only expert intended to testify to the effect of the

Salvadoran Amnesty Law. (Pet. for Writ of Cert. 10.)

The district court prevented Dr. David Escobar

Galindo from testifying to the jury because his

proposed testimony was simply a legal conclusion

resolving an ultimate issue at trial, which is not an

appropriate subject for expert testimony. (App. to Pet.

for Writ of Cert. 37a. (citing Berry vu. City of Detroit, 25

F.3d 1342, 1353-54 (6th Cir. 1994)).) Dr. Galindo was

not proffered as a fact witness, and Carranza cannot

now suggest that Galindo’s exclusion prevented

Carranza from convincing the Court that the

Salvadoran Amnesty Law would have applied to him

in El Salvador.

Because Carranza never proved that the

Salvadoran Amnesty Law would have barred

Plaintiffs’ claims against him if their claims had been

brought in El] Salvador, principles of international

comity did not need to be addressed by the lower

courts and do not need to be revisited by this Court.

12

B. Carranza cannot invoke international

comity principles because the ATS and

TVPA do not conflict with the

Salvadoran Amnesty Law.

Even if Carranza had met his burden of proving his

entitlement to amnesty under the Salvadoran Amnesty

Law, comity principles would not have affected the

district court’s exercise of jurisdiction over Plaintiffs’

claims because the Salvadoran Amnesty Law does not

conflict with the ATS or TVPA.

The issue of comity only arises when “there is in

fact a true conflict between domestic and foreign law.”

Hartford Fire, 509 U.S. at 798 (quotation omitted); see

also Societe Nationale Industrielle Aero, 482 U.S. at

555. There is no conflict for comity purposes “where a

person subject to regulation by two states can comply

with the laws of both.” Hartford Fire, 509 U.S. at 799

(citation omitted). The current case complied with

both the Salvadoran Amnesty Law and the ATS and

TVPA because the Salvadoran Amnesty Law does not

prohibit legal claims filed outside E! Salvador.

As the Sixth Circuit stated in its opinion below, a

“statute must not be interpreted as_ having

extraterritorial effect without a clear indication that it

was intended to apply outside the country enacting it.”

(App. to Pet. for Writ of Cert. 14a.) Nowhere in the text

of the Salvadoran Ainnesty Law does the Salvadoran

legislature indicate an intent for the law to apply

extraterritorially, nor did Carranza attempt to prove

otherwise. (Ud. at 110a-115a.) Seeing no evidence of

exterritorial intent in the plain language of the

amnesty law, the district court properly rejected

Carranza’s comity analysis, and the Sixth Circuit

13

properly affirmed the district court’s ruling. (/d. at

14a, 90a.)

In holding that the Salvadoran Amnesty Law

cannot be construed to apply extraterritorially, the

Sixth Circuit «ited the decision in BMW Stores, Inc. v.

Peugeot Motors o/ America, Inc., 860 F.2d 212,215 n.1

(6th Cir. 1988). In BMW Stores, the statute at issue

protected car dealers within Kentucky and did not

have any language indicating it was intended to

protect dealers extraterritorially. Jd. at 214. The

Sixth Circuit affirmed the principle that “unless the

intent to have a statute operate beyond the limits of

the state or country is clearly expressed or indicated

by its language, purpose, subject matter, or history, no

legislation is presumed to be intended to operate

outside the territorial jurisdiction of the state or

country enacting it.” Jd. at 215n.1. Nosuch language

appears in the Salvadoran Amnesty Law. (App. to Pet.

for Writ of Cert. 110a-115a.)

The Salvadoran Amnesty Law, therefore, does not

apply extraterritorially, and Carranza can stand trial

in the United States under the jurisdiction of the ATS

and TVPA without conflicting with the amnesty law in

El Salvador. Accordingly, there is no basis to apply a

comity analysis in this case.

14

C. Even if international comity principles

applied to Plaintiffs’ claims, the

practical consequences of letting the

Sixth Circuit’s decision stand do not

provide adequate grounds to grant

Carranza’s petition.

Unable to present any reason for this Court to

grant his petition, Carranza seizes upon ihe “practical

consequences” language of the Sosa decision as a

predicate to articulate a wholly unsubstantiated

“parade of horribles.” Carranza’s assessment of the

practical consequences of letting the Sixth Circuit’s

opinion stand should be rejected because his analysis

(1) is not supported by the facts and (2) relies wholly

upon facts that are not the proper subject of judicial!

notice.

1. Carranza’s speculation about the

practical consequences of letting the

Sixth Circuit’s decision stand is not

supported by recent history or the

facts of Plaintiffs’ case.

Carranza claims, without support, that his petition

should be granted because the district court’s decision

“undermines the very vehicle of El Salvador’s

transformation from a war torn charnel house to a

robust democracy.” (Pet. for Writ of Cert. 17.)

Carranza fails to mention, however, that the

Salvadoran democracy has grown more robust over the

past decade even while courts in the United States

have tried multiple prominent Salvadorans for torture

and murder pursuant to the ATS and TVPA.

15

In 1999, a representative of the estates of three

American nuns and one lay worker who were

murdered by members of the Salvadoran National

Guard invoked the ATS and TVPA to sue the former

director of the Salvadoran National Guard and the

former Salvadoran Minister of Defense for their

murders. Ford ex rel. Estate of Ford v. Garcia, 289

F.3d 1283, 1286 (11th Cir. 2002), cert. denied, 537 U.S.

1147 (2003). After a much-publicized trial, the jury

issued a verdict in the officers’ favor, which was later

affirmed by the Eleventh Circuit. Jd. at 1287.

A few years ater, the United States District Court

for the Eastern District of California entered a ten

million dollar judgment against Alvaro Rafael Saravia

for his role in the assassination of Salvadoran

Archbishop Oscar Romero. Doe v. Saravia, 348 F.

Supp. 2d 1112 (E£.D. Cal. 2004). Archbishop Romero,

one of the most important critics of the rampant

human rights abuses in El Salvador, had implored the

military to lay down their arms and stop murdering

Salvadoran citizens days before he was killed. Jd. at

1121. Asin Ford, the Saravia claims were based upon

the ATS and TVPA. 7d. at 1142.

The ATS and TVPA were, again, the bases of claims

against former leaders of the Salvadoran military in

Arce v. Garcia, 434 F.3d 1254 (11th Cir. 2006). In

Arce, a federal jury awarded over 54 million dollars to

three Salvadoran refugees who had been subjected to

torture by members of the Salvadoran military

between 1979 and 1983. Jd. at 1256. Like Carranza,

the two defendants in Arce were top commanders in

the Salvadoran military during that period. Jd. The

Eleventh Circuit affirmed the verdict. Jd.

16

Each of these trials was conducted publicly with

significant media attention in the United States and El

Salvador. The courts’ exercise of jurisdiction and

refusal to defer to the Salvadoran amnesty over the

past ten years has not undermined the Salvadoran

peace or impaired the growth of democracy in El

Salvador.

Not only has Carranza failed to allege or

demonstrate any negative effect in E] Salvador as a

result of these prior cases, he has also failed to

demonstrate that the well-publicized verdict in his

own case, which was announced over three years ago,

has had any adverse effect in El] Salvador. To the

contrary, Carranza points to the recent election and

installation of FMLN candidate Mauricio Funes to the

presidency of El Salvador as a testament to the vitality

of El Salvador’s democracy. (Pet. for Writ of Cert. 8,

12.) Carranza cannot reasonably argue that his case

or the earlier three cases discussed above grievously

damaged the peace and stability of El Salvador while

simultaneously heralding the vitality of the

Salvadoran democracy and civil society. Obviously,

such cases have not destroyed the peace and

democracy of El Salvador.

Carranza also claims that if this Court were to

deny his petition, “[rlelations between the United

States and El Salvador would suffer as well as those of

the United States with every other country that would

perceive the blatant violation of El Salvador’s

sovereignty that is the lower courts’ decision.” (/d. at

23.) Carranza offers no support for this statement.

Moreover, when questioned on this point in oral

argument, counsel for amicus, the Republic of El

Salvador, admitted that the United States Department

17

of State did not accept his request to participate in the

appeal of this matter.*” The State Department’s

decision not to participate in this case simply does not

comport with Carranza’s claim that the exercise of

jurisdiction by the district court has harmed or will

harm United States relations with El Salvador and the

international community.

2. Carranza’s speculation relies on an

abuse of the judicial notice doctrine.

In support of the assertions refuted above,

Carranza relies heavily, and improperly, on the

doctrine of judicial notice. In six different footnotes,

Carranza asks this Court to take judicial notice of

internet documents that are not a part of the record in

this case. Plaintiffs would have vehemently

challenged the use of these documents at trial, and

their judicial notice at this stage in the litigation is

wholly inappropriate.

Carranza’s petition cites an article posted on

www.america.gov for the proposition that the United

States considers the amnesty to be critical to El

Salvador’s peace. (/d. at 6.) Later, Carranza cites a

website purporting to present a decision of the

Supreme Court of El Salvador for the proposition that

Carranza may not be protected by the Salvadoran

Amnesty Law. (/d. at 12.) On four other occasions,

* Considering the State Department’s rejection of Carranza’s

request to intervene, Carranza’s argument that this case should

be left to the political branches should not be given weight.

Moreover, because Carranza did not raise “political question”

justiciability concerns at any stage of the district court

proceedings, he cannot do so at this point in the litigation.

18

Carranza presents the Court with articles intended to

establish (1) the United States’ estimate of the

Salvadoran war's death toll, (2) the _ political

affiliations of Ruben Zamora, (3) the results of the

most recent Salvadoran election, and (4) the outcome

of the trial of two Salvadoran guerillas. (/d. at 3, 5, 12,

24.)

Federal Rule of Evidence 201 allows for judicial

notice only when the facts proffered are “not subject to

reasonable dispute.” FED. R. Evip. 201(b). Plaintiffs

would have challenged the admissibility of each of the

documents discussed above and would have

strenuously challenged a number of the facts Carranza

asserts are contained therein. Carranza simply cannot

foist such “proof” upon the Court at this stage in the

litigation for assertions that are totally unsupported

by evidence in the record.

CONCLUSION

For the foregoing reasons, Nicolas Carranza’s

petition for certiorari should be denied.

Respectfully submitted,

DAVID R. ESQUIVEL CAROLYN PATTY BLUM

Counsel of Record Center for Justice and

STEPHEN J. JASPER Accountability

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