State Department Cables Ruled Inadmissible Under Public-Records Exception, Fed. R. Evid. 803(8), by Eleventh Circuit

Creating a possible circuit split, the Eleventh Circuit holds in Eloy Rojas Mamani v. Gonzalo Daniel Sanchez De Lozada Sanchez Bustamante, No. 18-12728 (11th Cir. Aug. 8, 2020), that State Department cables containing unattributed observations about conditions in a foreign country are inadmissible hearsay, not covered by the public-records exception of Fed. R. Evid. 803(8).

Rule 803(8) provides an exception to the rule against hearsay (Rule 802) a “record or statement of a public office” concerning “a matter observed while under a legal duty to report” or “factual findings from a legally authorized investigation,” although the opposing party can still get such evidence excluded is “circumstances indicate a lack of trustworthiness.”

This appeal concerns allegations by relatives of Bolivian civilians who were killed in 2003 during “a period of civil crisis in Bolivia,” raising claims under the federal Torture Victims Protection Act (TVPA) and wrongful death. Ten years after the case was filed, a trial resulted in a jury verdict for plaintiffs on the TVPA claim (with an award of $10 million) and a defense verdict on wrongful death. The district court then granted Fed. R. Civ. P. 50 judgment as a matter of law on the TVPA claim for defendants, finding insufficient evidence to support the verdict, and plaintiffs appealed.

In the larger part of the appeal, the Eleventh Circuit remands the TVPA dismissal, holding that the district court misapprehended the legal theory of the case and ordering that the district court re-review the record in light of the correct standard.

The panel also vacates and remands the wrongful-death claims. Here, the entire basis for reversal was the district court’s erroneous admission of “seven State Department cables about the status of the Bolivian social unrest in October 2003” offered by the defense to argue that the deaths came about during violent protests, not the fault of defendants. While the district court had originally excluded the communications at the summary judgment stage, it allowed the cables to come into evidence at trial as public records.

The defendants played up the cables in closing argument, arguing that they were the “‘the most important piece[s] of evidence in this case’ to demonstrate that the killings were not intentional. Defense counsel quoted specific ‘reports’ from the cables that there was
‘increasing levels of violence, with the protesters now bringing dynamite and guns
to bear’ and that unidentified ‘[l]ocal residents fear looting and the danger of
misdirected fire coming through windows or walls.’ Defendants also used this
evidence to attach the imprimatur of the U.S. government to their version of
events, arguing that what the ‘State Department was telling the people in DC – and
this is telling you’ was the danger is ‘what happened, misdirected fire.'”

The Eleventh Circuit holds that the admission of the cables was reversible error. Without addressing the “trustworthiness” issue (though casting some doubt on the reliability of the cables in a footnote), the panel holds that the cables must be excluded because the contents themselves were rife with unattributed statements that were themselves hearsay. “Most of the information that buttresses the State Department’s findings about the events in Bolivia lacks source attribution. It is impossible for us to determine whether the information was gleaned from on-the-ground observations by State Department officials (or other agents under a duty to report), was a conclusion drawn by State Department officials based on an investigation, or is just a collection of statements made by third parties.”

Moreover, because of the defendants’ heavy reliance on the cables as evidence at trial and in closing argument, the error was not harmless and affected the substantial rights of the plaintiffs.

The panel recognizes that the Second and Seventh Circuits had previously admitted similar State Department cables as “public records” but holds that their admission in this case did not meet the standards of the Eleventh Circuit.

(Because of the federal government’s reliance on State Department ground reports such as these cables in asylum and other proceedings, the decision here has potentially significant ramifications for the government. This heightens the possibility of an en banc petition or the filing of a petition for writ of certiorari in the U.S. Supreme Court for review.)

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