UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 99-0528-CIV-LENARD/SIMONTON
ZIT A CABELLO BARRUETO, in her
capacity as personal representative of
the Estate of Winston Cabello, and in
,her individual capacity, ELSA
CABELLO, KAREN CABELLO
MORIARTY, and ALDO CABELLO,
ARMANDO FERNANDEZ LARIOS,
ORDERDENYING DEFENDANT'SMOTION TO DISMISS
SECOND AMENDED COMPLAINT
THIS CAUSE is bcforethe Court on the Motion to DismissSecondAmcnded
Complaint(D.E. 136),filcd November2, 2001 by DetendantArmando Fernandez
On Deccmber12,2001,Plaintiffs ElsaCabello,Karin CabelloMoriarty, Aldo Cabello,and
lita Cabello llarrueto filed a Response.On January15, 2002, Defendantfiled a Reply.
Having reviewedthe Motion. the Response, Reply, and the record.the Court finds as
T. Factual Background
Thefollowing tactualallegations Amended
derivefrom Plaintiffs' Second Complaint,
filed September17, 2001 This dispute arisesout of the eventssurroundingthe alleged
executionof Winston Cabclfo ("Cabello" or "decedent")on October 7.. .1973. Prior to
September I. 1973, Cabello worked as an economistappointedby the governmentof
PresidentSalvadorAllende to serveas Director of the Regional Planning Office for the
region in Copiap6,Chile. (2nd Am. Compl. ~24.: On September
1973,President Allende was ousted in a coup d'etat led by Chilean military officers, whereby
GeneralAgosto Pinochctseizedcontrol and beganruling Chile asa military junta. (~26.)
One day after thc coup, Cabellowas arrested incarcerated the Copiap6jail. (~27.)
Within a few weeks,he was transferrcdto the Copiap6military garrison. (, 28
Following the coup d'etat, in October, 1973,a squadof military officers headedby
ChileanArmy GeneralSergioArellano Stark embarkedupon what becameknown as the
"Caravan ofDeath." (~2. The squadtraveledto a numberof cities in northernChile, where
judicious killing, torture, and abuseof various
military officers engagedin acts of extra
individualswho wcre incarcerated to their perceived actualoppositionto the militaIy
Larios accompanied Caravanof Deathto
junta. (, 30.) DefendantAnnando Fernandez the
northernChileancities, including Copiapo,and servedas bodyguardto GeneralArellano.
(~ 34 Defendant "was aware of the deathsof the prisonersat or near the time of the
visit to eachof the cities" and"cngagedin actsincludingactsof violencedesigned
harm,torture, and result in the deathsof the prisoners. (~) Whilea member
to in.jure, "
the Caravan, Defendant was anned with various weapons, including a £2rYQ,a "short, curved
knife. . . designed inflict woundstha~althoughultimately fatal, cause slow andpainful
death." (, 35.)
On October 16, 1973,Detendantand five other members of General Arellano's squad
arrived at the Copiap6 military garrison. (, 36. They instructed local military officers to
providcthemwith the prisoners'files~and then selected including
Cabello. for execution.~ 37 All thirteen prisonerswere professionalsor community
selected executionaspart of the squad'sscheme eliminate oppositionto the
leaders, for to
'inochetregime. (, 38 During thc night, Cabelloand otherprisonerswere loadedonto a
military truck, driven about tcn minute5 outside ofCopiapc>,and ordered to get off the truck.
:1i42.) When Cabello refused to get off the truck, he was slashedwith a £.Q.[YQ. 43.) The
bodiesof Cabelloandthe otherprisonerswere guardedat a military facility until they were
removed to the Copiap6cemetery. (, 44.
On October 18. 1973. the local Copiap6 newspaperpublished an announcement
falsely indicating that thirteen political prisonershad beenkilled "while trying to escape
during their transfcr from detention in Copiap6 to anotherprison (, 45.) Shortlyafter
deathin 1973.his family received deathcertificateindicatingthat he was
executed the Chileanmilitary. (~46 In 1985. the decedent's family received a revised
death certificate identifying the cause of death as a gunshot wound. (~) Once the civilian
government under the leadership of President Patricio Aylwin replaced General Pinochetts
military regime in 1990, the Chilean government grdDtedrequests to exhume the bodies of
CabeUo the other twelve political prisonerskilled on October 17, 1973. (~49.) The
exhumation revealed that many of the victims were slashedwith corvos, but did not indicate
whether the victims had been killcd during an escapeattempt. (~50.) In 1991, the family
received a final death certificate lacking reference to the cause of death. (~49.)
Bern'een 1973 and 1990, Chilean military authorities deliberately concealedthe
decedent'sburial location from his family. (, 47.: The Chileanmilitary government 1978
alsogaveamnestyto the pcrpetrators accomplices criminal actscommittedbetween
.September11, 1973 and March 1O,1978. (,; 56. On August24. 1990,the ChileanSupreme
that of to
Courtextended decree amnesty humanrights violationscommittedby the military
during the foregoing period. (~) Plaintiffs thus allege that they are without adequate
remedies Chile. (~)
Defendantresignedfrom thc Chileanmilitary in or about January,1987,by which
time had risen to the rank of major. (~14.) At the time of his resignation,he admitted
publicly that hc had beena memberof GeneralArellano's squadin October, 1973
secretlycntered UnitedStates or aboutJanuary,1987and lived in an
Defendant the in
undisclosedlocation underthe protectionof the U.S. Government. (, 15.) On or about
February 4, 1987. he plcd guilty to being an 'accessoryafter the fact" to the
[Directorate ofNatlonallntelligence ]-sponsoredcar bombing in Washington, D.C. that killed
the ex-Chilean Ambassador to the United States, Orlando Letelier, and his assistant, Ronni
KarpenMoffit. (, 16.) Currently, in
resides Miami,Florida. ~, 10.
II. Procedural History
A. Relatedto Amended
'lbe following Plaintiff.~filed the original Complaint in this action on February 19,
1999: thc Estate of Winston Cabello; Elsa Cabello, mother of Winston Cabello, a naturalized
U.S. who residesin California; Zita Cabello Bamleto. sister of Winston Cabello,a
U.S. citizenwho resides Califomi~ in her individualcapacityand in her
capacityas the personalrepresentative the Estateof Winston Cabello; Karin Cabello
Moriarty. sister of Winston Cabello. a naturalized U.S. citizen who reside.~ California; and
Aldo Cabello,brotherof WinstonCabello,a Chileancitizenwho is a legalpermanent
residing in California.
residentof the United States,
Plaintiffs filed a seven-claimAmendedComplainton April 7. 1999.alleging causes
of actionfor: extrajudicialkilling; torture;crimesagainst or
degradingtreatmentor punishment;wrongful death; intentional infliction of emotional
diS1ress; civil conspiracy. On April 24, 2000,the Court dismissedthe wrongful death
andcivil conspiracyclaims basedun Plaintiffs' notice of voluntary dismissa]
Defendant filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction (DE. 22)
and a Motion tor Summary Judgment,or, in the Alternative, a Rule 12(b)(6) Motion to
Dismi~s(D.E. 19) on May 24, 1999 On August 10, 200I, the Court grantedin part and
deniedin partthe Motion to Dismissfor lack of SubjectMatterJurisdiction,anddeniedthe
Judgment Rule 12(b)(6)
Motiontor Summary and Motionto Dismiss. (D.E. 120.) The
Court denied the Motion for SummaryJudgmentwithout prejudice to afford Plaintiffs
time for discovery. The Court dismissedall claims by the Estateof Winston
Cabello('"theEstatc")for lack of standing, dismissed intentionalinfliction of
"emotional distressclaim astime barredunderChileanlaw. Thetorturc claimwasdismissed
[or lack of standingbecause was asserted the Estatealone. As a result of the Court's
August lOth Ordcr, only three claims remained: extrajudicial killing, crimes against
humanity. and cruel, inhumanor degradingpunishmentor treatment. The Court directed
Plaintiffs to file a SccondAmendedComplaintby August 27,2001 On August 21.2001,
Motion to Strike,in part, striking Plaintiffs' prayerfor
the Court grantedDefcndant's
attorney'sfees. (DE. 122.)
The SecondAmended Complaint contains certain amendedfactual allegations}
Plaintiffs now asserteight claims for relief:
Claim I - Extrajudicial Killing, brought by Plaintiffs Elsa Cabello, Karin Cabello
Moriarty, and Zita Cabello Baruetto,in her individual capacity,under the Torture Victim
ProtectionAct ("TVP A "). Pub. r 102-256,Mar. 12, 1992, ) 06 Stat. 73 (codified at 28
V.S.C. § 1350 note).
ClaimII ~ Extrajudicial Killing, in violation of customaryinternationallaw, Article
Plaintiffs conceded Chileanlaw appliedto all non-federalclaims in the AmendedComplaint.
2 Plaintiffs no longer allegethat Defendant
Of particularrelevance, ly
personal killed their decedent
with a £Q!.YQ, that hc was in the Witness Protection Program from 1987 until recently.
6 of the InternationalCovenanton Civil andPolitical Rights ("ICCPR") and the TVPA, by
Zita CabelloBaruetto,in her capacity as personalrepresentative the Estate,underthe
Alien Tort Claims Act C"ATCA"),28 V.S.C. § 1350.
ClaimIII - ExtrajudicialKilling, in violation of customaryinternationallaw. Article
Covenanton Civil and Political Rights("ICCPR") and the TVPA, by
6 of the InternationaJ
Adlo Cabello,underthe ATCA
C]aimIV - intemationa]
Torture,in violationof customary law, Article 7 of the
(the "T ortureConvcntion andthe TVPA. by Zita CabelloBaruetto,in her
or Punishment "),
ofthc Estate.underthe A TCA;
Zita Cabello Baruetto, in her capacityas personalrepresentative the Estate,under the
Claim VI - CrimesAgainstHumanity,in violation of customaryintemational1aw,
Aldo Cabello,underthe ATCA~
Claim VII - Cruel, Inhumanor DegradingTreatmentor Punishment, violation of
customary international law, by Zita Cabello Baruetto, in her capacity as personal
representative the Estate,underthe A TCA; and
Claim VIII - Cruel, Inhumanor DegradingTreatmentor Punishment,in violation of
customaryinternationallaw, by Aldo Cabello,underthe A TCA
III. Parties' Arguments
Defendantassertsthat the SecondAmendedComplaint fails to statea claim upon
which relief may be granted Plaintiffshavcchanged numberof key factual
contends he cannotbe held
allegationsfrom the AmendedComplaint. First. Defendant that
liable for actstaken pursuantto ordersof his military superiors As Plaintiffs no longer
allege that Defcndant personally killed their decedent.he arguesthat he cannot be held liable
in tort for '"indirect participation" in the murder. Second,Defendant maintains that Plainti tTs'
Plaintiffs now concede
claimsaretime barred,and not subjectto equitabletolling, because
'that Defendanthas beenarnenablc service of processin the United Statessince 1987,
argues Zita Cabcll0Bamleto,aspersonal
Third, Defendant that ofd1c Estate,
lacks standingto assertclaims for torturc, crimcs againsthumanity, or cruel, inhuman or
degradingtreatment,becauscChilean law doesnot recognizeher as a beneficiary of the
Plaintiffs argue,first. that an individual who indirectly participatesin humanrights
violations may bc held liable under internationallaw. Second,Plaintiffs assertthat their
previouslystatedby this Cow1. Third. Plaintiffs
claimsarenot time barred.for the rcasons
contendthat the standingis.c;uc controlled by fcderal or Florida law. ratherthan Chilean
law, and, as such, the Icgal repr~entative of the estatehas standingto bring the claims
asserted the SecondAmendedComplaint.
Motion to Dismiss Standard of Review
Pursuantto FederalRule of Civil Procedure12(b)( a defendantmay move for
dismissal a claim that fails to statea claim uponwhich relief canbegranted.TheEleventh
Circuit hasclearly articuiatedthe ~tandard review for a Rule 12(b)(6)motion to dismiss
"The standard review for a motion to dismissis the samefor the appellate
courtasit is for the trial court." Stephens DeQ'tof I lealth & HumanServs.,
90 I F.2d 1571. 1573(11th Cir. 1990). A motion to dismiss is only granted
whenthe movantdemonstrates "beyond doubtthat the plaintiff canprove no
setoffact!\ in supportof his claim which would entitle him to relier." ,CQ~
v. Gibson,355 U.S. 41. 45-46 (1957).
II~v. Entm't Com.. 139F.3d 1385,1387(I Ith Cir.), cert. denied,525 U.S.
the in complaintandall
1000 (1998). "On a motionto dismiss, factsstated appellant's
reasonable therefromare taken as true.~ St~heDS, 901 F.2d at 1573.
Accordingly,theCourt accepts faclsstatedin Plaintiffs' Second
all reasonableinferences therefrom as true.
A. Equitable Tolling
In the August 10, 2001 Order Granting in Part and Denying in Part Defendant's
Motion to Dismiss.the Court found that the TVPA's ten-yearstatuteof limitations should
be equitably tolled duc to, inter ali~ the Chilean military's deliberateconcealmentof the
burial locationfrom Plaintifts, who wereunableto view the decedent's
decedent's body until
1990,andthe confusioncaused the issuance threedifferent deathcertificatesbetween
1973 and 1991. The Court explicitly found that, "once the civilian governmentunder the
leadershipof President Patricio Aylwin replaced General Pinochet's military regime in 1990,
the tolling ceased. the limitations period commenced (D.E. 120 at 40. "In addition.
theCourt fmds that Defendant'sstatusin the WitnessProtectionProgramsinceFebruary4,
1987until a time shortly before the Complaint was filed. created a period in which Defendant
wasostensiblyabsentfrom this jurisdiction. in that he could not be served." (ld.)
Defendantarguesthat sincethe SecondAmendedComplaint no longer allegesthat
was and that was
Defendant in the WitnessProtectionProgram, therebyconcedes Defendant
amenableto service of process in thc United Statessince 19871principles of equitable tolling
shouldnot apply. Defendant~s contravenes Court's clearholdingthat
and the ten-yearlimitations period commenced, 1990, The Court's
the tolling ceased, in
finding with respect Defendant'sparticipationin the WitnessProtectionProgramwasnot
crucial to the Court's detennination; rather, it merely provided further support for application
of the equitabletolling principle,
cited by Defendant
Noneof the authorities a
compels differentconclusion.] In
relics on a non-bindingSeventhCircuit case,Carla v. Baxter
Co~.. 920 F.2d 446 (7th Cir. 1990),to arguethat equitabletolling appliesonly
suggest the Court shouldreconsider ruling on theeqwtabletolling issuein light
3 Defendants that its
of TRW Inc. v. Andrews, 122 S. Ct. 441 (200I), where the SupremeCourt declined to apply a
general discoveryrule in thecontextof theFajrCredit ReportingAct" 15V.S.C. § 1681p. TheCourt
finds that TRW Inc. is inappositeto the instant case becausethe Supremc Court specifically
addressed language structureof the FCRA provision, which explicitly deljneates two-year a
';~i~~+;ionperiod triggered by the date of discovery in cases where a defendant willfully
misrepresents material information. rg.at 447-48. The SupremeCourt did not purport to alter the
generalprinciples of equitabletolling, nor did it direct lower courts to apply them differently.
for a shortperiodof time aftera plainliff hasobtained, by due diligencecould have
obtained,the infonnation necessaryto file the lawsuit. (Def.'s Reply at 5 In~
between situationwherea plaintiff, throughno fault
ora defendant. beenunableto obtaininfomlation neces~ary decidewhetherhis injury
is due to the defendant'swrongdoing, and one where a defendant takes active stepsto
preventthe plaintiff from suing in time.4~ at 450-53. In the Connercontext, the limitation
period is tolled only during the period in which the plaintiff could not obtain the infonnation;
postpones accrualof the limitation
in the lattercase,the defendant'sact of concealment the
Theinstantcasefits within the lattercategory, the Courtdetenninedin theprevious
Order that the pre-1990 Ch ilcan government's concealment of the decedent's burial location
and the accuratecauseof deathpreventedPlaintiffs from bringing this action untjl 1990.
Accordingly. ten-yearlimitation perioddid not beginto accrueuntil 1990. Since
Plaintiffs broughtthis action within ten years,and Defendanthasnot presented Court
with any compellingreason alter its previousruling that the limitation periodcommenced
in 1990.the Court finds that the claims allcged in the SecondAmendedComplaint arenot
4 calls the former situation "equitabletolling" and the latter "equitableestoppel." Ida
a: 450-51. The termsare often usedinterchangeably.~ Browning v. AT&T Paradyne,120F.3d
222, 226 (I t th Cir. 1997)("AT&T appears be confusing,as apparentlydo many litigants and
courts,the docb'ines equitabletolling and equitableestoppel"). For instance,the Hou.-.e
on the TVPA speaksin terms of "cquitable tolling remedies"to remedy situations of fraudulcnt
concealment.H.R. REP. No. 102-367(1),1992 U.S.C.C.A.N. 84,88. Without getting entangledin
a debateover semantics,the Court addresses matcrial issueof whether the TVPA's ten-year
limitation period barsthe instantaction.
B. Liability for Indirect Participationin HumanRightsAbuses
torture, crUDesagainst humanity, and cruel, inhuman, or degrading treatment or punishment.
TheCourtruled previouslythat cachof thesecauses action,with the exceptionoftorture.5
is actionable in federal court under the Alien Tort Claims Act (" A TCA "),28 V.S.C. § 1350.6
Defendant arguesthat Plaintiffs fail to statea claim becausethe SecondAmended Complaint
The Second that "actively participated"in the
killing, torture,infliction of severe
extrajudicial pain and suffering,and actsof cruel,
with respect the decedent.(2nd Am. Compl.~ 58, 65.
5 The Court dismissedthe torture clwrn allegedin Count II of the AmendedComplwnt on grounds
that the Estateof Winston Cabello lacked the legal capacity to sue Defendant. In the Second
AmendedComplaint.Plaintiff Zita Cabello Barrueto,in her capacityasthe personalrepresentative
of the Estateof Winston Cabello. brings a claim for torture againstDefendant. Official torture
clearly violatesobligatory norms of customaryinternationallaw, and is thereforeactionableunder
theATCA. ~Kadic v. Karadzic.70 F.3d 232,236(2d Cir. 1995),~Abebe-Jira v.Negewo.
72 F.3d844,847 (1IthCir. 1996). The Court addresses issueof whetherthe legal representative
hasstandingto bring a torture claim in SectionV -C, ~.
6 The A TCA provides: "The district courtsshall haveoriginal jurisdiction of any civil action hy an
alien for a tort only, committed in violation of the law of nationsor a treaty of the United States."
28 V.S.C. § 1350.
i Defendantarguesthat there is no conceptofcivjl conspiracyunder Chilean tort law. WheTeall
of the claims in the SecondAmendedComplaintarebrought underjnternationallaw, however,the
relevantquestionis whetherPlaintiffs havc allegedconductby Defendantthat violates the .'Iaw of
nations," including internationalagreements customaryinternationallaw.
73, 81, 92, 99, 106, 114.) Additionally.eachclaim for relief allegesthat Defendant
participated a "joint tortfeasor,co-conspirator, participantin a commonplan, design
and scheme," that he "procured. aided,abetted the
and assisted other
members GeneralArellano's squadin effecting the commonplan, design,and scheme"
that death,pain andsuffering,torture.andothcr inhumaneacts. (ldJ
servedasbodyguardto GeneralArellano, that
Specifically.Plaintiffs allegcthat Defendant
he "engaged actsofviolcnce designedto injure. harm.torture. and result in the deathof
the prisoners,"and that he "was awareof the deathsof the prisoners ,". (ld.., 34.)
As the Court construes SecondAmendedComplaint,Plaintiffs no longer allege
Thus, acceptingthe facts
that Defendantpersonallykilled Winston Cabellowith a £QI:YQ.
allegedin the Second Complaintas true,the Court must detenninewhcther
Defendantmay be held liable under the A TCA tor indirectly participating in a common
scheme conspiracy. aiding andabettingothers.in committingthe allegedabuses.
Althoughthe EleventhCircuit apparently not addressed issuedirectly. many federal
conspiracies accompliceliability. ~
courtshaverecognizedthat the A TCA reaches and
liilaQ v. Estateof Marcos. 103F.3d 767,776 (9th Cir. 1996)(affinning district court'sjury
instructionallowing foreign leaderto be held liable upon finding that he "directed,ordered,
conspiredwith, or aidedthe military in torture, summaryexecution,and 'disappearance"');
Mehinovic v. Vuckovic. No. CIV.A :98-CV-2470-M,2002 WL 851751,at .24-25 (ND.
Ga. Apr. 29. 2002) (holding dcfendantliable for aiding and abetting in acts that violate
customaryinternationalJaw);EastmanKodak Co. v. Kavlin, 978 F. Supp. 1078, 1091-92
(S.D. Fla. 1997) (assertingATCA jurisdiction over claim of conspiracybetweenprivate
defendantand state actors to causeplaintiff's arbitrary and inhuman detention); Doe v.
UnocaJCo~., 963 F. Supp. 880, 889-90(CD. CaJ.1997)(pennitting ATCAjurisdiction
conspiredto commit violations ofintemational
.overplaintiffs' allegationsthat defendants
law);.c.L Abebe-Jira v. Ne&cwo, 72 F.3d 844. 845-48 (11th Cir. 1996) (affirming verdict for
torture and cruel, inhuman or degrading treatment where defendantsupervised or participated
with othersin "some of the actsof torture" againstplaintiffs); Carmichaelv. United Tech.
~ 835F.2d109, 13(5th Cir. 1988)(assuming, not deciding,that "the A TCA does
confer subjectmatter jurisdiction over private parties who conspire in, or aid and abet,
official actsof torture by one nation againstthe citizensof anothernation").
Thc SenateRcport on the TVPA makesclear that the statuteis intendedto apply to
or in No.1 02-249,at 8.9 (1991
thosewho "ordered,abetted, assisted the violation." S.REp.
.WL 258662). The Report states:
Under international law, responsibility for torture, summary execution. or
disappearancesextendsbeyondthepersonor pcrsons who actuallycommitted
those acts - anyone with higher authority who authorized, tolerated or
knowingly ignored thoseacts is liable for them.
I.4. at 9.
The Reportfinds its authority in variousinternationalagreements. at 9 n.16. For
Article 4(1) of the United Nations ConventionAgainst Torture and Other Cruel,
Inhumanor DegradingTreatmentor Punishment
StatePartyshall ensurethat all actsof tortureareoffensesunderits criminal law. The same
shall apply to an attemptto commit torture and to an act by any personwhich constitutes
complicity or participation in the torture." Sjmilarly, Artjcle 3 of the Inter-American
the crime of torture: (a) A public servantor employeewho, acting in that capacity.orders,
instigates inducesthe useof torture, or directly commitsit or who. beingable to prcvent
it, fails to do so." Finally, the Report provides that "low-ievel officials cannot escape
liability by claiming that they were acting underordersof superiors,"asArticle 2(3) of the
TortureConventionexplicitly providesthat, "[a]n order from a superiorofficial or a public
" No. 102-249,at *9.
authoritymay not be invoked asajustification for torture. S. REP.
Other international convcntions similarly provide that those who assist in the
commission actsprohibitedby intemationallawmay beheld individually responsible.
instance,Article 7(1) of the TntcmationalCriminal Tribunal for the former Yugoslavia
("ICTY'") Statutestatesthat "[aJ personwho planned, instigated.ordered,committed or
otherwiseaidedand abettedin the planning,preparation executionof a crime referredto
in Articles 2 to 5 of the presentstatute[gravebreaches the GenevaConventionsof 1949,
violations of the laws or customsof war, genocideor crimes againsthumanity] shall bc
individually responsiblefor the crime." Article 7(1) also providesthat "[t]he fact that an
personactedpursuantto an orderof a Government of a superiorshall not relievc
him of criminal responsibility."
InProsecutorv.Tadic,CaseNo T-94-1-A,Judgemcnt July 15.
1999),the AppealsChamberof the InternationalTribunal for CasesRegardingthe Fonner
Yugoslavia held that "the notion of common design as a Connof accomplice liability is firmly
establishedin customaryinternationallaw and . in the [ICTY Statute]."~ ~ 220.
Under Article 7( 1), "Wh(>evercontributes to the commission of crimes by a group of persons
of may be held to
or somemembers the group,in executionof a commoncriminal purpose.
,. 1.4:'190.As the court explained
The above interpretation is not only dictated by the object and purpose of the
Statute but is also warranted by the very nature of many international crimes
which are committed most commonly during wartime situations. Most of the
times these crimes do not result from the criminal propensity of single
individuals but constitute manifcstations of collective criminality: the crimes
are often carried out by groups of individuals acting in pursuanceof a common
criminal design. Although only some members of the group may physically
perpetratethe criminal act (murder. . . etc.), the participation and contribution
of the other members ofthc group is often vital in facilitating the commission
of the offense in question. It follows that the moral gravity of such
participation is oftcn no less - or indeed no different - from that of those
actually carrying out the acts in question.
that and liability are well
The Courtagrees principlesof conspiracy accomplice
established customaryinternationallaw, set forth in all of the sourcesdiscusscdabove,
The A TCA is the legal means by which individuals who violate well-established international
law may be held liable in United Slatescourts. Congress clearly indicatedits intent to
provide federalcourts as a forum to bring to justice individuals who contributedirectly to
evenwherc it cannotbe shownthat an individual actually committed
theactsof abuse.Accordingly, theCourt determines a matterof law that Defendantmay
be held liable underthe A TCA for conspiringin or aiding andabettingthe actionstakenby
other Chilean military officials. contrary to internationallaw, with respectto Plaintiffs'
decedent.Prcsently,Plaintiffs haveallegcdsufficient participationby Defendantto avoid
dismissalof the SecondAmendedComplaint
c. Standing of Legal Representativeof Decedent'sEstate
In theAugust 10.200I Order,thc Courtdismissed claimsbroughtby the Estateof
,WinstonCabello for lack of standing,basedon the Court's finding that both federal and
Florida law contemplate bring lawsuitson behalfof estates.(D.E. 120
at 1 .) of
In the AmendedComplaint, Zits Cabello Bamleto, as legal representative the
estate.broughta claim for cxtrajudicialkilling Neither party disputedthat legal
representativesmay recover under the rvp A for anexlrajudicialkilling, andtheCourt found
that the Stateof Florida had declaredZita Cabello Barruetoqualified as decedent'slegal
underFlorida law. In the Second
representative AmendedComplaint,Zita CabelloBamleto.
in her capacityas legal representativc the estate,also allegesclaims for torture, crimes
againsthumanity. and cruel, inhumanor degradingtreatment. Defendantarguesthat she
lacks standingbecauseunder Chilcan law, the decedent'swife and children are the only
possiblelegalrepresentatives the decedent, that only the actualvictim of torture can
bring an action for torture underthe TVPA.
First, the Court rejectsDefendant'sassertionthat Chilean law governsthe issueof
who qualifies as the decedent's"legal representative." As the Court detennined the
on a torture claim by the victim's representative.8 section
theTVPA, while not implausible,is overly restrictive. The HouseReportprovidesthat the
The TVPA provides,in relevantpart: ... individuaJwho, underactualor apparentauthority, or
color of Jaw,of any foreign nation- (1) subjectsan individual to torture shall, in a civil action, be
liable for damages that individual; or (2) subjectsan individual to an extrajudicial killing shall,
in a civil action,be liable for damages the individual's legal representative, to any personwho
may be a claimant in an action for wronglul death." 28 U.S.C. § 1350note, § 2.
added). The Senate
367(1),1992U.S.C.C.A.N.84, 87 (emphasis Reportstates:
The legislationpennits suit by the victim or the victim's legal reprcsentative
or a beneficiaryin a wrongful deathaction. The term "legal representative"
is usedonly to include situationsin which the executoror executrix of the
decedent's estateis suing or in which an individual is appearingin court as a
"friend" ofthc victim because the victim's mentalor physicalincapacityor
youthful age. The term "bencficiary in a wrongful deathaction" is generally
intcndedto thosepersonsrccogni7.ed legal claimantsin a wrongful death
action underAnglo-Amcrican law.
intendedto allow the
In view of the legislativehistory, the Court finds that Congress
of torturevictim to recoveron behalfof the
survivinglegal representative a deceased
District of New York. Defendant's
victim's estate As notedrecentlyby the Southern
interpretation would allow the most egregious violations of section 2(a)( 1) -torture resulting
or the - by
in death rendering victim incompctent to gounaddressed theTVPA. ~ ~
~. Ro~al Dutch Petrol. Co., No. 96 CI V . 8386 (KMW), 2002 WL 319887, at .16 (SD. N. Y.
2002). Such a result would not contribute to the TVPA's purposeof "making sure that
torturersanddeathsquads longer havea safehavenin the United Statcs." S. REr. No.
102-249. .3. Therefore,the Court finds that PlaintiffZita CabelloBarruetahasslanding
asthe legal representative of the Estate of Winston Cabello. to bring the claims alleged in her
capacityin the SecondAmendedComplaint. Accordingly. it is
ORDERED AND ADJUDGED that the Motion to DismissSecondAmended
Complaint(D.E. 136),filed November2,2001 by DefendantArmando FemlmdezI~arios,
DONE AND ORDERED in Chambers Miami, Floridathis5- day
United Slateo; Magistrate Judge Andrea M. Simonton
Julie C. fciguson. Esq.
Rnbert G KerrisBn. Esq
!>aul L Hoffinan. Esq.
Jomua Sondheimer. Esq.
SUSInShawn Roberts, Esq
Sleven W [>avis, Esq
rimolhy .1. Norris. Esq.
99.e528-C IV - LE~A RD/SIMONTON