Cabello v. Fernandez Larios

Cabello v. Fernandez Larios

Cabello v. Fernandez-Larios, 402 F.3d 1148 (11th Cir. 2005).

IN BRIEF | BACKGROUND | LEGAL PROCEEDINGS

IN BRIEF

The trial against Pinochet operative Armando Fernandez Larios for the torture and murder of Chilean economist Winston Cabello ended in victory on October 15, 2003. Winston Cabello was one of dozens of Chilean citizens murdered in the infamous “Caravan of Death”.

A Florida jury found Fernández Larios liable for torture, crimes against humanity and extrajudicial killing and imposed $4 million dollars in damages.  In 2005, the 11th Circuit Court of Appeal upheld the verdict.

BACKGROUND

In October of 1973, General Sergio Arellano Stark, under orders from General Augusto Pinochet, led a self-styled “military delegation” on a voyage from southern to northern Chile. Called the “Caravan of Death”, this delegation was in fact a death squad. As they landed at local military bases, the Caravan inspected the garrisons, often testing for suspicions of disloyalty, and ordered or carried out the torture, abuse and extrajudicial killing of at least 75 political prisoners. The purpose of the Caravan was pure intimidation and terror:

“One of the reasons for the mission was…to terrorize the presumed willingness of the Chilean people to fight back. But without a doubt, it was also intended to instill fear and terror among the commanders. To prevent any military personnel, down to lowest ranking officers, from taking a false step: this could happen to you!” - Oleguer Benaventes Bustos, second in command at the Talca Regiment in 1973

Some of the victims were perceived political opponents of the military junta, some were military officers deemed too lenient with their detainees. Others, such as Winston Cabello, were simply civil servants who had worked in the Allende government.  Winston Cabello was a 28-year old economist and regional planner for the government of President Salvador Allende at the time of the coup in September 1973.  Cabello was a highly regarded official and star soccer player in Copiapó, the northern city in which he lived and worked.

On September 12, 1973, the day after the coup, Cabello was arrested in a dragnet of perceived political opponents and detained at the military garrison in Copiapó. In mid-October, he was told that his file had been reviewed and that his release was imminent. But on October 16, 1973, defendant Armando Fernández Larios and the other members of the “Caravan of Death” arrived at the Copiapó military garrison.  As stated in the complaint, the squad selected thirteen prisoners for execution; among them was Winston Cabello. During the night, the designated prisoners were removed from the detention facilities and loaded onto a military truck.

About ten minutes outside of Copiapó, in a secluded area off the highway, the vehicle stopped and the prisoners were ordered off the truck. All thirteen detainees were then killed by gunshot or slashed with corvos, the traditional curved knife of the Chilean army.  Afterwards, an announcement was published in the local newspaper indicating that the prisoners had been shot and killed "while trying to escape".  From 1973 until 1990, government officials refused to turn the victims’ bodies over to their loved ones for burial.

Finally, in 1990, once Pinochet had left power, the families of the victims petitioned the Chilean government to undertake an exhumation in Copiapó, where the victims were believed to have been interred. Preserved by the dry desert climate, their bodies bore signs of atrocious torture.

By this time, defendant Fernández Larios had already “retired” to the United States.  There, Fernández Larios publicly acknowledged that he accompanied General Arellano Stark on the Caravan of Death. However, a Chilean amnesty law barred prosecution in Chile, and U.S. criminal law did not permit prosecution for extrajudicial killings committed abroad, or for torture committed abroad before 1994. Therefore, a civil suit was the Cabello family’s only legal remedy against Fernández Larios.

LEGAL PROCEEDINGS

Filing & Pre-Trial Motions

CJA filed Cabello v. Fernández Larios before the U.S. District Court for the Southern District of Florida in 1999.  The suit accused Armando Fernández Larios of complicity in the 1973 torture and murder of Winston Cabello. The charges – including crimes against humanity; extrajudicial killing; torture; and cruel, inhuman or degrading treatment – were brought under the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA).

Defendant Fernández Larios filed motions for dismissal and for summary judgment on the grounds that the claims were untimely filed after the end of the ATS and TVPA’s 10-year statute of limitation.  However, the District Court applied the principle of equitable tolling, since the Cabello family did not have certain knowledge of Winston’s death, or of the circumstances or the horrific manner of his death until 1990, when forensic teams finally were able to locate and exhume his remains from a secret mass grave.

Trial & Verdict

On October 15, 2003, a Miami jury found Fernández Larios liable for torture, crimes against humanity, and extrajudicial killing. They awarded $4 million in compensatory and punitive damages to the plaintiffs:  Zita Cabello Barrueto, Karin Moriarty, Aldo Cabello, and Elsa Cabello – the sisters, brother and mother of Winston Cabello, respectively.

Appeal

Fernández appealed the verdict, attempting to reintroduce the argument that the lawsuit—filed 26 years after the alleged events—was time-barred by a 10-year statute of limitations. On March 14, 2005, a three-judge panel of the 11th U.S. Circuit Court of Appeals rejected all of Fernández Larios’arguments and upheld the verdict.

The victory of the Cabello family was a powerful vindication for the survivors of Pinochet’s regime. The trial marked the first time any Pinochet-era perpetrator has been tried in the United States, as well as the first jury verdict for crimes against humanity in the United States.