may please the court james tice on behalf of the plaintiffs juries unanimous special verdict in this case made two specific findings for each of the eight victims that each one died as a result of an extra judicial killing by oblivion soldier and that each defendant was secondarily liable under the command responsibility doctrine that without reaching the command responsibility issue the district court vacated the verdict under rule fifty due to a supposedly lack of evidence of deliberative killings by bolivian soldiers but under the exceedingly deferential rule fifty standard which requires accepting all of plaintiff's evidence is true and drawing all reasonable inferences and plaintiff's favor the only question is whether irrational jury could find it more likely than not that believing soldiers acted with deliberation when they killed these eight victims and the trial planets offered an extraordinary amount of direct evidence over three weeks including testimony from eyewitnesses to the shootings and even from soldiers who were ordered to fire at unarm civilians along with your question or and we haven't talked about this at all but let's say that we were to conclude down at the district court conflated that deliberated the extrajudicial findings  deliberate killing issue and the command responsibility issue what would you say the remedy would be when we send it back for the district court to separately consider the command responsibility doctrine would we decided ourselves what would you recommend well i think in this case your honor because it is at least in our view it's so clear that the district did err on the extradition killing that i think would be perfectly appropriate for th  court to also rule in our favor on command responsibility and find that there was easily sufficient evidence of that as well but i think at a minimum to the extent this panel had any doubt about that certainly the ordinary course would be to remain and allow the district court to look at that issue in the st instance it is after all fact intensive issue having said that we think there is more than sufficient evidence as to each of the three prongs for command responsibility and i'd be happy to talk about them with you to the extent you have questions i'm also happy to talk about the extrajudicial killing ruling to the extent that the panel has questions about doing the evidence we presented as a whole i think a fair minded jury could easily infer that believing soldiers acted with deliberation when they fired the fatal shots and i think as your honour's question noted just your court seemed to conclude otherwise by sort of conflating command responsibility and extrajudicial killing but i said as we pointed out the jury and if you look at the jury verdict form it's sucking number four hundred and seventy four in appendix two it makes it very clear for each of the eight victims there are two questions that the jury was asked to cite number one was it a deliberate a killing by a bolivian soldier yes or no if the answer is yes then it asks do you find each of the to defend is responsible under one of three secondary liability theories and for each one of them the district court checked yes it was a deliberate killing by a bolivian soldier and two it was the each defend it was secondarily liable under a command responsibility doctrine conspiracy and not agency so just to be clear about that under the command responsibility doctrine and there's a lot of discussion about a plan it's not clear to me that there must be a plan in order for command responsibility doctrine to attach i don't know if you want to speak to that at all yeah there does not have to be a plan your honor under very well established commander sponsibility doctrine believe they are say the garcia case that this court actually affirmed a finding of command responsibility against a defense minister as in this case despite the fact that there were no allegations of a plan or when he orders to participate in the alleged extrajudicial killings it seems like the district court discussed this plan concept and so let me ask you if we were to conclude that we needed to send it back on the command responsibility doctrine do you think we would need to provide any kind of instruction or anything of that nature with respect to the idea of a plan or anything else i think that certainly your honor  make clear that no plan is required after all again i think that his or her argument this is a case of strict liability basically no your honor not at all not the not under the command responsibility doctoring it's not a strict liability offense at all it has three different requirements the jury had to find st that the defendants had effective control over the military to going to your point that the defendants either knew that extra judicial killings were occurring or should have known under the circumstances at the time and finally that even if they knew of these sensually war crimes that they did nothing to prevent or punish them so it's not strict liability at all it's not responding at superior it's a situation where of the of those other pillars failed the new york you lose we would lose the commando response below in the sense in the sense that had the jury ruled against us we would've lost or if there is no strict liability you have to have a predicate you have to we have to show commander sponsibility your honor and we did and we did with ample evidence but it was up there in predicate that bad responsibility or magic words command responsibility is a legal test i understand that but it's not strict liability rexx definitely not strict liability it's very far from it in fact we put on extensive right and i think in this circumstance too there's there's little fear of that this is actually a circumstance where the bolivian government waives opportunity on behalf of these two defendants and the state department think this is critical except that waiver of responsibility so the whole reason why this case was allowed to go forward was because the normal immunity doctrines that might apply were waived by both governments both relative just to be clear although a plan could satisfy the command responsibility doctrine your position is it's not necessary absolutely your honor it's very clear that it's a new or should have known standard and there was ample evidence that they both knew about these deaths as they were occurring they were receiving contemporaneous reports they were there was widespread media reports there was dissension within the cabinet and without the throughout the entire government this was a situation where it was simply not credible to find that these two defendants could not have known about these mounting civilian deaths extrajudicial killings as they were occurring and in fact they ended up having to flee the country as a result of these mounting deaths so  the jury had lots of evidence before and i should say your honor to ultimately it's not a question of whether this panel or this record thought are you know evidence was believable is a question of whether the jury did and clearly they did with respect to both the extrajudicial killing point and the commander sponsibility dock right so if we were to decide on the command responsibility doctrine issue and all we would be deciding is whether or not there was enough evidence that if a jury believed it would have to satisf the requirements to establish command responsibility that's right if any rational jury could have looked at this evidence and said we believe there was we believe it is more likely than not that these individuals exercise command responsibility it's more likely than not that each of those prongs were satisfied that's all this court has decided to send actually to believe the evidence itself so again i have to walk through some of that evidence too because i think it was overwhelming but for for example for the superior subordinate relationship it's a question of effective control that can be ample evidence of it as well as yuri control and in fact this is not a situation where these two individuals were at some high remove from what was going on they were intimately involved they were issuing mobilization orders defending byrd's aims actually on the ground in two of the conflict areas where civilians were being killed so and i should put this in context your honor as well believe me is not a huge country it's approximately ten million people when a sixty people die over a three week period in mounting  know escalations of violence and hundreds more wounded and there are reports coming in from the media from the catholic church from within the own cabinet the vice president resigned saying you know this these deaths are a result of essentially widespread killings by soldiers who were ordered to shoot anything that moves they were even ordered to shoot at unarmed civilians below the belt because they said shoot anyone with with weapons above the belt anyone else below the belt i mean that's really incredible testimony i want to emphasize in fact how extraordinary that sort of testimony was because not only were you getting i get this conscripts in the military right that's exactly my point your honor was not only testimony with respect to the victim witnesses to the killing themselves that actually the soldiers on the ground that's not the sort of evidence you would ordinarily get in a case like this it's really incredible the jury was hearing all this evidence of prisoner also some evidence that some of the conscripts refused the order and one of the superiors then took the gun from the conscript and killed him with that it's exactly right your honor this was appendix three document forty one a page forty page forty two there were officers being urged to shoot at the people that civilians unarmed civilians when they did not do so one of the officers actually took the conscript gun and shot him with it the jury heard that sort of extraordinary testimony so again i'm happy to reserve my time for a bottle but i think there was ample evidence it please the court i'm steve raber for the appellee who were here in the courtroom today i'm going to refer to them as the defendants for ease of reference eight years ago this court held that the facts alleged in the original complain did not meet the test for extradition killing the plainest amended their complaint and promised a new piece of evidence that they said was critical but there was evidence of a premeditated planned to kill civilians before the defendants ever took office and that evidence never materialized to trial well whether they didn't there was evidence that was a trial that was not in the complaint that was found that was it before us in two thousand and eleven it falls short i would say it fall short of what was alleged in the complete and i would say that this is a case where it's important to look behind the briefs well let me ask it this way would you agree that there are two separate issues that we have to address  judicial killings i'm talking about one is whether there were deliberated killings and the other if so only if cell whether the command responsibility doctrine whether there was sufficient evidence to conclude that the command responsibility doctrine applied yes in the district court addressed one of those in his rule and it's rule fifty order the deliberative killer liberated killing the right did not address the commune responsibility which was fully briefed right now even assuming that a plan is required which i don't think that's good how that's not what we're saying and that's not what the district court was say what the district court was saying was this court held in my money one that precipitated shootings during an upris ok don't we have more then evidence of just precipitate killings i mean when you have evidence that soldiers are being instructed to shoot anything that moves to shoot unarmed civilians to shoot them below the waist even though they present no no danger at all to the officers why doesn't that why isn't that sufficient evidence to establish that there were deliberated killing his killings where the soldiers intended to kill these people were not pursuant to a valid order that's not connected to any of the deceit and that was the same issue in the complaint that was dismissed that random episodes around in this we need to look behind the briefs here you're on i'll look at the record because the testimony was take the testimony of the soldier vargas can i ask you why it's not connected because it seems to me that when when the soldiers are being instructed to shoot at anything that moves and we have evidence that has been put on the record i'd like to get to that ok i'd like to ask you about it where for example an individual is outside he's on armed and he is shot at why why is that not the kind of evidence that would provide what's necessary in order to conclude there were deliberated killings this court held the money one that st of all there evidence of who fired a shot or why but there doesn't have to be we've never said and no i mean as far as i know no court has ever said that in order for there to be deal evidence of a deliberated killing that you need to be able to identify who shot home i understand in those cases if you look at them like her romeo for example that was a case where the defendant was in prison after pleading guilty his subordinate was witnessed killing someone we didn't nobody knew who that was they knew that it was a subordinate but the person died had three gunshots to the back of their head that was the only inference that it was a deliberative killing similarly in the fritz case soldiers abducted from the battlefield in iraq they're taken away nobody knows who shot and killed a lemon our head execution style ones in their body armor had been let me ask you something you are not arguing that if soldiers were told to shoot at anything that moves and they in fact shot anything that moved and some of the victims of that were the plaintiffs in this case that that is not a deliberate killing are you if if a soldier who fired and killed one of while lucio was on armed and trying to hide that's a pretty vivid eyewitness testimony if you go look at the witness cussed on you here's his testimony quote i couldn't tell whether it had been any of the military that gave the shot because all i did was hear the shot that's a far cry from what is said in the brief another eyewitness for marsa lean of the deceit and his wife testified quote i can't lie i didn't see them shooting the count council admitted that no there is that we hear all this talk about eyewitness testimony but what did they say let's look behind the brief the soldier in war assata the one who said the order was shoot anything that moved in the reply brief they said a soldier in war assad on september  th never saw armed civilians what did he say page sixty five i saw tear gas and heard dynamite blast and bullets when i entered war assata page sixty seven i saw people stationed in trees on sides of the road and reported it to my commander pages one hundred and twelve n one hundred and thirteen the peasants had weapons and were firing at us bullets were flying page thirty eight there was shooting back and forth when the soldiers went into homes page sixty nine i saw injured police had been shot page sixty nine the police were desperate for help they told me to shoot because there were no war weapons page seventy six he saw a body of a member of his unit who had been shot and killed and it was after the police and after the soldiers had been shot injured and killed that lieutenant miranda ordered him to remove his non lethal ammunition and switch to leave lethal ammunition and as to the order shoot anything that moved the actual order was shoot anything moved shoot below the belt for anybody who has a gun or dynamite shoot above the belt and the soldier testified at page seventy eight dollars that the purpose of that order the purpose of that or was designed to minimize the risk that unarmed people would be killed that's the record i mean and so i'm so that isn't that it is a prevent people who followed that instruction i mean it people shot below the belt at unarmed people and as a result those unarmed people bled out that that that the order to shoot anything moves is the incident you want to sata and that that person was shot on an up to down trajectory standing on the nd floor and there's nothing that links any shoot anything that moves order to any of the deceit it's here there's just none and i would say that this court this country was order is not a an extradition killing of course it's not of course it's not but when you are giving instructions to shoot anything that moves and the activity that you're talking about has happened more than a mile away from where shooting at anything that moves is occurring and when it's happening in five different locations over three days and everything is this and everything's happening the same way it seems like that is all part of deliberated killings of individuals i mean there was also evidence that brazillian was present and made a comment during the meeting about how when he came back into power they were going to make sure they didn't have the same killed there war assad is an hour away so to say that mr brazilian was on the ground in two of the sites where it happened that there's just no support in the record for that it just it's not there in the nd place where i presume they're talking i'm talking about the discussion that he had when they were not in power yet that was in the year two thousand that was three years before that was testimony of talking about the prior administration where there had been something called a water war and there were musings about how are we going to deal with with conflict like that nothing about a plan to shoot unarmed civilians nothing about a plan to shoot anything that moves and in fact under the military structure  bolivia the the president in this we talking about orders the president issued two orders in this case one on september th reporting that there had been a serious guerrilla attack and war yes it's volume five document five o six dash twenty six and that said that they were to arrange the necessary security measures to restore order in a lotto because people were blowing up gas stations the town was surrounded they had pushed rail cars to block the roads if the hospital had no oxygen infants were dying in the hospital oh it was complete chaos and those facts were an re sorry where are they being held yes there are eight hundred a menu as you can imagine people from the united states germany england that had tourists who were trapped there were putting tremendous pressure on the president to get them out and so they come in in buses they come to the outskirts of town in a military force and police force was coming from the south to make sure they had safe passage to warsaw to and they got ambushed and that's when vargas said i saw people in the trees there were people shooting from the homes i she the only one that was killed and warsaw to yes you're on ok so and she was inside the house was inside her home right and this was when the trying to bring that caravan of tourist through the town yes and that's when they were ambushed and there was firing coming it's in the litter couldn't that occur about a mile away from where my mom lived so it's about a one thousand meters was the evidence from the nets from mr asked sorry i'm not too good at converting but i do with that well i the father was in the hills hiding behind a rock with his daughter was killed and he was not in the tail and he was in the hills hiding behind  rock and somebody came and told him his daughter had been killed that's their eyewitness that nobody saw her get shot in is that the fact showed that the military in the town was taking fire from homes in the surrounding hills and so those are what the facts are that is a precipitate shooting there is no evidence of who fired any shot or why whether she was shot it was a mistake that for somebody who person there's no nobody that knows any of that and and so it's impossible to know you have to make an inference st that it was a soldier that fired the shot then that it was done intentionally as opposed to perceiving they were under  he also said that he witnessed five officers positioning themselves to shoot and pointing at the civilians did he not he did in what he testified as he saw them and then he walked an additional block and a half away from that then crossed the street and then looked cata corner and he also testified that he never saw an armed civilian at any point during that day he did testify to that but we have that if the supreme court has said that the court should give credence to on contradicted in unimpeached evidence in there is evidence that in l alto there was three the military was being attacked with dynamite in armed insurgents and that the city was it a the pass a result was a complete standstill because of all this violence that was going on two or three of the victims who as you said bled out couldn't get to the hospital because of the blockade set up by the  surgents and it was it a complete standstill and so in these circumstances of a president and trying to respond to a terrible national emergency he issues two orders joint general orders at that point under the bolivian military structure all he can do is issue an order to general commander and then the general commander says i get the initial concept this is general release herrera said this i get the initial concept and then the military plans the operations and neither the president nor the defense minister has any role any involvement and under the manual for the use of force to your point about the order shooting the thing that moves the unit commander is the only person at all times who has the authority to tell people to open fire and so there's nothing that links anything that anybody did to the defendants in this case and they certainly did not have the ability to connect and very question right i mean that's the commemoratives onsets right and they were and they were actually under a legal obligation to call in the military because it's undisputed that the police were insufficient because police in bolivia don't carry lethal ammunition they carry gas guns and right here and that's just the way their structure is a little different from the way it is here in this country so he had a legal obligation to call in the military and vice minister harper described it he said that the president was trapped between his legal obligation to call in the military and a political solution of trying to continue  would that not be a question of fact on that one well it may have got to me and i'm done but i'm extrajudicial killing well there's no eyewitness so we don't know who fired a shot or why we do know it's uncontested that there were insurgents on the rooftops firing down its soldiers we know that in that case the witnesses who testified about that death guzman apostle testified that he heard explosions for half an hour up until the time his sister was shot that's why they went up on the roof to see what was going on explosions with the dynamite that the insurgents had they were throwing dynamited fuel trucks they were attacking government and police stations they were blockading the roads soldiers got killed in each of the locations that the military was responding to armed insurgents whose stated goal was to overthrow the president in they weren't going to stop until that happened and it your colleague has suggested that you haven't connected up the the soldiers i guess who were allegedly in the deliberated shootings with the victims in this case and he says that that you've taken some liberties with your description of their record on enough you'd like to address that yeah i'd love to address it your honor i agree with the opposing counsel that you should look beyond the and should look at the record in this case because it's incredibly expensive and although they cherry picked you know certain statements that they think support their case all this evidence was presented to the jury the jury found in our favor and i'll actually address some of the specific points that my friend on the other side talked about eleven he talked about he said well there's no evidence that any of these shooters were ordered to shoot at civilians we have direct testimony did captain belmonte give or this is on excuse me document yes how long did the shooting last approximately forty five minutes ok that was one of one of the points that my friend the other side mention another one this is the death of lucio as your honor pointed out this was a situation where what location this is in the this is alto location real psycho this is appendix i've document five hundred down and i'm a victim as is lucy o l u c o this is the situation where the the witness saul because daniel sol five soldiers line up and and shoot and here's how the testimony came in so this is mr stone it was a local there so right there at the corner a man leaned over or reached out to look and see what actually let me go to the prior pages on this is page thirty four of the deposition transcript that was read and so i walked in perhaps five minutes forward along the can go that's when i turned around again and i saw that the military were positioning themselves to shoot how many military did you see so i saw five there was one standing up addition to fire there was one on his knee bent knees position to fire and right that spot there's a little mound of earth and then the next day he says he continues to move since this was a war zone and soldiers were in the at civilians the next  right there at the corner a man leaned over reached out to look and see and right then you heard boom a shot so he fell back at the shot ok this is testimony immediately after he sees soldiers lining up to shoot a witness falls victim falls falls down and dies and that is the sort of inference that a jury is allowed to reach now we have testimony like that makes the point that we were having insurgents they were shooting they were used in dynamite the military was shooting and i think i heard for at least three of them he said there was no eyewitness we don't know who fired the shot and don't know why they came from an insurgent who was on the rooftop our surgeon who was over here that there is no person who can be the  you're saying if i go on the record i'm going to find this eyewitness for every shooting well just to be clear there's i was for every shooting for four of them the eyewitness actually solve a soldier lined up to shoot and the victim fall dead blockades going on in those areas it's on the speed of their blockades road blockades but in terms of arms in surgery insurgency in terms of shooting coming back at these soldiers there was no testimony of that and i can give you i can give you the cites just obvious that all of us are to have to read the record with if i had to go because you're told disagreement on the facts well your honor respectfully i think that given that this is a jury found in our favor i own all counsel i've been a judge fifteen years i know about jury verdict now i simply mean though i don't think you need to go through a fine tooth comb on both sides i'm going to read that i've already read most of the record i'm going to reread it and the last what both you would colleagues sir certainly but just to give you just hold just to answer your question more specifically for example with lucio there was testimony it's appendix five document five hundred and twenty that witness the same witness who saw him die say he never saw an armed civilian any point during that day so again there were blockades there were protests  we go to that if you don't mind just for all of the all of the victims again there is testimony about things going on that day so a lot of it was contested and in fact there were two witnesses who actually testified that they were coerced to give false statements but for each of these victims there was testimony that in that particular time in a location where they were shot and killed there was no chaos and no arbonne surgery or certainly no armed insert insurgency if you look at our reply brief on page six i believe are one the district court found it was not a consistent that's a footnote four of his opinion below but nd we think it's not inconsistent because in on the one hand the question was whether the killings were deliberate on the other whether they were willful and intentional a conjunctive standard the suggestion with willful and intentional suggests that willful must mean something beyond intentional and in fact i think defendants even concede in their brief at page twenty they say the jury in rejecting the no wrongful death verdict actually held know that the deaths were not wrongful not intentional and not malicious so i think they agree with us that willful willful intentional implies something more than intentional implies maliciousness and in fact if you look at the jury instructions on punitive damages it actually says you can award punitive damages if the if you find that the defendants acted willfully and maliciously so they actually linked those two terms as well so we think that it clearly shows that that being irreconcilable the jury must have assumed it was a higher standard to answer your question on the other four victims so for each case there was there was testimony that the victim was killed and then immediately after there were soldiers in the area there were soldiers aiming there was there was other evidence linking it to soldiers deaths so for example marlaina step the eight year old the mother testified that soldiers in camouflage were outside the window she went to get her daughter who was bleeding out and she looked out the window and saw soldiers in camouflage that's at pentax to document for seventy six pages fi