mr beckett yes your honor mark back on behalf of the opponents to her family if you please the court your honour's the case before you raises the question of whether the district court should have exercised jurisdiction over international human rights claims brought pursuant to the illiad torts statute that were directly committed by a natural person who is a citizen of the united states and who moreover used is u s residence issue it does seem that that we have suggested that the crime against humanity clyne crimes against humanity claim is a distinct pla attacks on a civilian population using torture cruel degrading inhumane treatment or arbitrary detention so it's distinct i understand that so but in this case right same it's just not not clear to me i'm just not you know absolutely judge and i don't know that it's completely clear it's a jury question at the end of the day judge as to what the jury would think was appropriate in this case and that's what we found with the award that was given by the jury in this case certainly on the question of punitive damages i think it's easy to see how the crimes against humanity would certainly make in a bear a very appealing case for an increase in the amount of punitive damages because here we're talking about claim for cruel inhuman and degrading treatment and one claim for crimes against humanity those are all dismissed and what we're asking this court to do is to reinstate those claims to vacate the district court's decision dismissing the elliott toward statue claims i think this is your question judge yes yes now now we when we get to the rest of the case i have a concern about whether he doesn't appear to me that any relevant conduct for purposes of this klein occurred in the united states and therefore could support a claim that's within the jurisdiction of the alien tort statute with the question before this court specifically is whether this defend having used the united states as a safe harbor to avoid accountability in chile should be a defendant over whom the district court exercises jurisdiction and if you look at this court's ruling in dover drummond what that court teaches is that the district court has to look very closely not just at the claim itself but at all of the operative facts all of the relevant conduct in fact it says the court has to look closely at the evidence and the allegations so it's not merely the bare bones of the claim itself and it is appellants position that in this case this this conduct clearly touches and concerns the united states because we have a defendant who is united states citizen and a natural pores if the citizenship in corporate statuses of the dependents and were insufficient to establish jurisdiction it's hard for me to see tosses after acquired citizenship can support jurisdiction the facts of this case judge i think demonstrate that the offended in this case willfully and deliberately avail himself not only of us right in this presidency but of u s citizenship in order to a vague justice in chile and we know that from the facts that have been to do so thus far in the loop to discover we've had we haven't had discovery on these claims for say but we've had overstay that visa was in the united states for indeterminate period of time many years with undocumented status and then applied for more residency and citizenship in the course of those applications yes to trouble with requires us to consider that domestic extraterritorial location where the defendant is alleged to engage in conduct that directly or secondarily results in violations of international law in other words the relevant conduct is conduct that he that directly or secondarily results in the by a lation here the violations the extra judicial killing and all of the conduct occurred in chile none of it in the united states the connection but to the united states came afterwards and true there's a problem there's united states interests involved in it we don't want our country to be a safe haven but drama in holes that you've got to have it least some relevant conduct in chile a is the court first noted that the court incurable it intentionally and broadly stated that the quote claims rather than the alleged tortures conduct must touch and concerned united states territory with sufficient force thus the court operative language instruction or course to apply a fact based analysis to determine whether the a t s claims with a close connection to the us territory displace the presumption so i think that the court's looking not soley at the torches conduct that's what the district court district court said specifically that it was at the mere elements of the claim you can't just stop at what conduct was committed in the other jurisdiction you have to look at the larger facts here look this is a case i think we have to maybe also draw back a little bit from all the tests that have been articulated what we have is really a touching concern tests and one paragraph of the decision that's all the guidance that we have and courts have tried to do to make up their own rules as they go along to figure out how curable should be applied and what it should me but if there were ever a case that touched and concerned the interest of the united states it has to be a case like this one where someone has previously availed himself of u s citizenship to evade accountability in chile and where there is no other remedy that can be had against this defendant he can't there is no remedy for the horrors in chile because there's no trials and abstention and there could be no civil damages until the criminal process has run its course which it can't do because the defendant refuses to go to chile i mean let me just put you back in a time machine for  and say that this is one nine hundred forty eight and we have a bunch of former german military officers who are here in the united states and germany's past a blanket amnesty law and there's no extradition treaty with this court really say that having these that congress can address the problem otherwise like it did with respect to the torture but but but the alien tort statutes not designed to solve all the court create a world co work for the federal courts you know that's true judge but the kyoto accord very specifically said that the only toward statute was meant to mean something and to have a practical effect and it elaborated a very narrow rule in that case and i think you have to read that decision the chief justice his decision along with the concurring opinion by briar justice prior and along with the opinion by justice kennedy which was very open to other situations i think you have to go back to the oval test you have to go back to sosa and you have to say is this a case that implicates u s interests i don't think you can do that by looking narrowly at the fact that yes the conduct itself occurred in another country the point here is that we have a u s citizen who has abused it's just the kind of the conduct not just a majority of the conduct of the conduct quell on foreign soil well that's that's one way of looking at a judge but to be honest with you from a very practical perspective when someone comes the united states to invade justice in their home country that's part of the continuing cover up that's part of the continuing concealment of what was going on in the hora family has diligently attempted to find the killer of their father for forty years and much of it was frustrated because this man concealed his past and lied about it when he applied for citizenship he specifically failed to state that he had been an officer in the chain military and he specifically said that he was not involved in the violent overthrow of a democratically elected government it was his conduct itself and his use of his residency in u s citizenship that actually frustrated the efforts of this family to find justice of the day so i would i would propose to the court that  one has to go back and say is this a put is this a case where subject matter jurisdiction should lie and i submit that it does implicate in the most core sense u s citizenship because here twenty three of the drama decision if no relevant aspects of an a t f claim occur within the united states the presumption against extraterritoriality prevents jurisdiction categorically and i suggest that that's category this case falls into i suggest that the the fact that mr barry moved to the united states many years after the underlying acts took place is irrelevant to the claim i understand that the palace want to focus on the word feasor aunt chilean territory it's clear it's seems clear from the record that mr varian towse wanted to leave chill a to avoid the consequences of his behavior  it's less clear that he came to the united states in order to seek a safe harbor there's no indication i obviously he didn't get a safe harbor the torture victim protection act  worked and he was and was hit with a twenty eight million dollars judgment against him that there's also an extradition request by chile i frankly don't know the status of the act at extradition request but there are other remedies available that would prevent the united states from becoming a safe harbor and i think that's what happened in this case the second category of cases that drummond references and this is the category that that the appellate subject suggest this case falls into is where some relevant aspects of the claim occur within the united states and that situation that's where this touch and concern focus test that bell and drum and adopt come into play and even extraterritoriality again this case is is in many ways just like drummond the only distinguishing factor that they can point to is that we have an individual citizen as opposed to a corporate citizen they argue individual citizen was committed some of it at the actors were in the united states or had say it been some kind of funding or policy decision right that's right that's right the allegation in and here there's not that that's right everything happened in the seventy's in she'll lay  only many years later did mr berry and has come to the united states so again i'll sort of focus on the language of drama and because because drummond did flush out the test drive and requires and this is in the second category drama requires that that claims must have a u s focus and adequate relevant conduct must occur here only then is displacement warranted and then domestic conduct must meet a minimum factual predicate even assuming where in this the second category the conduct here the domestic conduct which is the fact he moved here many years later does not meet that minimum factual predi e again it's just a touch briefly on justice kennedy's concurrence here justice kennedy seemed to suggest in his concurrence which again is just a concurrence so it's not binding  that in cases like this one where the torture victim protection act applies that we don't even have to deal with these issues it's a very short concurrence but he suggested that that it was right for the court to leave open this world of  possibility that there may be a case down the road where doesn't apply where the torture victim protection act doesn't apply where where the where the a t s were extraterritorial record in the case as as the appellants when i review the complaint which alleges certain injuries and i review the jury's verdict which awarded damages to to the to the estate of mr jara and to the into his his descendants it seems to me that that the injury has been fully were dressed yeah what about though the fact that we acknowledged the crimes against humanity claiming it doc that the detention claims are precedents actually say some different things we have some president suggesting that's a claim and some that says it's not that the crimes against humanity claim we have said is a distinct claim and he says at the very least the punitive damages award could be different that that's probably right isn't it i can see that that could be right now when i review the record it doesn't seem to me that they were limited in any way i don't think there were any motions in limine a that prevented them from from addressing all of the conduct allege in the complaint so it's my understanding that just to clear up that last issue the judge directed the district judge directed that we take out the a t s claims there was a thirty minute complaint that it only included the t v p a claims so those claims that complaint was not before the jury and i would disagree with the characterization that we were allowed to put in all the evidence that we would have put in had we had the crimes against humanity claim that's that's not the case there was other evidence were plenty and presented that we didn't present as a result of dismissal so i think that goes to movies which i think i think we're nearing common ground on in any event so i will be labor it  i want to go back to kill bill for a moment and i would respectfully submit to this court that this case is much stronger than the kill case kill case was a case that involved corporations and justice roberts in his decision said this was mere corporate presence and i think the implication there is that it would be much different if we were dealing with a natural person where there is exclusive of the force to his argument mr beckett that you want to talk about cuba but you don't want to talk about drama no i'm happy to talk about  shit to me your biggest problem i don't i don't read drama in the restrictive way that my colleague is presenting it and perhaps some members of the bench are reading it now i think that drummond is susceptible very much to a reading that you look beyond the narrow confines of the elements of a cause of action itself and that you are permitted to look at all relevant conduct and to me all relevant conduct includes what was it what was made out in the complaint and what was certainly made out by the appellants in the course of the briefing on the motion to dismiss we told the judge this is a safe harbor case and the judge understood that because his motion dismissed he said yeah maybe you've said it's a safe harbor case but there is no safe harbor now i don't think he gave an adequate response about a very learned unable judge trying to navigate i think somewhat difficult water there was a safe are because you have the t v p a claim that's not what we say for the reasons that we discussed drummond allows this court to go beyond the quote the actual tortious conduct  times so it approves of the reasoning and ultimately and that's why it goes on to instruct the district courts for they have to sift carefully it says look closely at the evidence in the allegations in this case so this is the plimsoll line here i mean you have to decide whether you agree this is relevant conduct or not we submit to you that a tortious human rights abuse or who comes to this country to cloak himself wrongfully fraudulently with u s citizenship to avoid justice where he committed these crimes does touching concern and by the way the court in drama did not did not ignore the touching concern tested embrace the touch of concern to us and that's what we're looking at here just as a leader's decision by the way cobol he ordered for a broader rule it's clear the rest the court rejected that broader role and you have to i think look at the concurring opinion of duck justice pryor and of justice kennedy well you know sometime maybe we could talk about just concurring opinion it is baffled me for a long time i'm still not sure i understand but own but i take your word for it on that we have your case mr brackett and we appreciate your argument