Boniface et al v. Viliena

Filing 273

Judge Allison D. Burroughs: MEMORANDUM AND ORDER entered. Defendant's motion for judgement as a matter of law under Federal Rule of Civil Procedure 50(b) and/or for a new trial under Rule 59, and remittitur of the damages award, [ECF No. 261 ], is DENIED. In addition, because this Order resolves the motion that is the subject of Plaintiffs' request for a status conference, [ECF No. 272 ], that request is DENIED as moot. (McManus, Caetlin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
DAVID BONIFACE, NISSANDÈRE
MARTYR, and JUDERS YSEMÉ,
Plaintiffs,
v.
JEAN MOROSE VILIENA,
Defendant.

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Civil Action No. 17-cv-10477-ADB

MEMORANDUM AND ORDER
BURROUGHS, D.J.
Following a trial from March 13, 2023 through March 21, 2023, a jury found Defendant
Jean Morose Viliena (“Defendant” or “Viliena”) liable for the extrajudicial killing of Plaintiff
David Boniface’s brother, Eclesiaste Boniface; the attempted extrajudicial killing and torture of
Plainitff Nissandère Martyr’s father, Nissage Martyr; and the attempted extrajudicial killing and
torture of Plaintiff Juders Ysemè (“Ysemè,” and collectively with David Boniface and
Nissandère Martyr, “Plaintiffs”). [ECF No. 250 at 2 (“Verdict”); ECF Nos. 251–255, 257–258 1].
The jury awarded David Boniface $1.75 million to compensate for the killing of his brother,
Nissandère Martyr $1.25 million to compensate for the attempted killing and torture of his father,
Ysemè $1.5 million to compensate for his attempted killing and torture, plus a total of $11
million in punitive damages for all of the Plaintiffs. [Verdict at 3–4]. Now pending before the
Court is Viliena’s motion for judgement as a matter of law under Federal Rule of Civil Procedure

1

The trial transcript is docketed at ECF Nos. 251 (“Day 1”), 252 (“Day 2”), 253 (“Day 3”), 254
(“Day 4”), 255 (“Day 5”), 257 (“Day 6”), and 258 (“Day 7”).

50(b) and/or for a new trial under Rule 59, and remittitur of the damages award. [ECF No. 261].
For the reasons set forth below, Viliena’s motion is DENIED. 2
I.

STANDARD OF REVIEW
“A party seeking to overturn a jury verdict faces an uphill battle.” Marcano Rivera v.
Turabo Med. Ctr. P’ship, 415 F.3d 162, 167 (1st Cir. 2005). “Courts may only grant a judgment
contravening a jury’s determination when the evidence points so strongly and overwhelmingly in
favor of the moving party that no reasonable jury could have returned a verdict adverse to that
party.” Id. (quoting Rivera Castillo v. Autokirey, Inc., 379 F.3d 4, 9 (1st Cir. 2004)). In
evaluating a motion for judgment as a matter of law, the Court must consider “the evidence
presented to the jury, and all reasonable inferences that may be drawn from such evidence, in the
light most favorable to the jury verdict.” Osorio v. One World Techs. Inc., 659 F.3d 81, 84 (1st
Cir. 2011) (quoting Granfield v. CSX Transp., Inc., 597 F.3d 474, 482 (1st Cir. 2010)).
In contrast, the Court’s power to grant a Rule 59 motion for a new trial “is much broader
than its power to grant a [motion for judgment as a matter of law].” Jennings v. Jones, 587 F.3d
430, 436 (1st Cir. 2009). The Court may grant a motion for a new trial “if the verdict is against
the demonstrable weight of the credible evidence,” or if it “results in a blatant miscarriage of
justice.” Foisy v. Royal Maccabees Life Ins. Co., 356 F.3d 141, 146 (1st Cir. 2004) (quoting
Sanchez v. P.R. Oil Co., 37 F.3d 712, 717 (1st Cir. 1994)). “The district court may
‘independently weigh the evidence’ in deciding whether to grant a new trial,” Cham v. Station
Operators, Inc., 685 F.3d 87, 97 (1st Cir. 2012) (quoting Jennings, 587 F.3d at 435), and “wields
‘broad legal authority’ when considering a motion for a new trial . . . .” Jennings, 587 F.3d at

2

Because this Order resolves the motion that is the subject of Plaintiffs’ request for a status
conference, [ECF No. 272], that request is DENIED as moot.
2

436 (quoting de Pérez v. Hosp. del Maestro, 910 F.2d 1004, 1006 (1st Cir.1990)). At the same
time, a “‘district judge cannot displace a jury’s verdict merely because [she] disagrees with it’ or
because ‘a contrary verdict may have been equally . . . supportable.’” Id. (quoting Ahern v.
Scholz, 85 F.3d 774, 780 (1st Cir. 1996)). “[W]hen an argument that the evidence was
insufficient forms the basis of a motion for new trial, the district court is generally well within
the bounds of its discretion in denying the motion using the same reasoning as in its denial of a
motion for judgment as a matter of law.” Lama v. Borras, 16 F.3d 473, 477 (1st Cir. 1994).
II.

EVIDENCE AT TRIAL
A.

Factual Background

In reaching its verdict, the jury could have found the following facts, based on the
evidence presented at trial. These facts are construed in the light most favorable to the verdict.
1.

Haiti Generally

On the first day of trial, Dr. Robert Earl Maguire testified as an expert regarding “the
conditions of political violence in Haiti and particularly organizations that are characterized as
community-based armed gangs, armed groups.” [Day 1 at 33:10–12]. In sum, he provided,
supported by detailed testimony, [see, e.g., id. at 39:2–50:10], the following opinions that he
summarized for the jury:
[1] Haiti is a country that is suffering under many challenges, and primary among
them would be extreme poverty, dysfunctional or weak organizations, particularly
in rule of law, and . . . the use of unrestrained violence in politics is another very
common trait in Haiti. . . .
[2] [C]ommunity-based armed groups . . . have what [he] would call a symbiotic
relationship with a patron, or patron, usually a politician who they serve. And when
they serve this politician, they receive benefits in return, material and financial
benefits and access to power. . . .
[3] [T]hese groups, these community-based armed groups, given their relationship
with the political sponsor, they can function in their communities with impunity,
or, in other words, they function above the arm of the law.
3

[Id. at 34:1–17]; see also [id. at 47:13–48:10 (“The groups aligned with a political patron, there’s
a package of services they can provide. . . . [T]hey may discourage, find ways of discouraging
people from voting against their candidate. This could be through means of intimidation or
threats. . . . They also can use threats of violence and violence itself against voters. . . . [O]nce
the patron wins [election], the groups do not stand down. . . . [T]hey’re going to serve his
interest . . . [,] [i]t’s a symbiotic relationship. So they want to maintain access to power and
control over the limited resources, so they will continue to serve that master as he retains power
and as he continues to extend his power.”)].
He also testified more specifically regarding KOREGA, a group “bear[ing] all the
trademarks and characteristics of [a] community-based armed group[].” [Day 1 at 33:16–22].
KOREGA was founded in the 1980s, and since then has “affiliate[ed] itself with political groups
and provid[ed] them with the muscle they needed to make sure they would get power and get in
office.” [Id. at 51:7–23]. KOREGA operated in Grand’Anse, Haiti, which includes the
community of Les Irois. [Id. at 50:11–51:6; Day 3 at 20:16–19].
Regarding the justice system in Haiti, another expert, Brian Concannon, opined that (1)
individuals who “pursue claims against powerful people in Haiti for human rights violations . . .
face a very significant risk of retributive violence,” and (2) “Haiti’s justice system is pervasively
corrupt and subject to deep political interference.” [Day 4 at 24:22–25:5]. With respect to his
first opinion, he further testified that he could not “think of anyone who has pursued a legal
claim for human rights violations against a powerful person where there has not been retributive
violence.” [Id. at 25:10–21].
2.

Les Irois and Viliena’s Mayorship

Turning to the events relevant to this case, in the late 2000s in Grand’Anse, where Les
Irois is located, see supra, there were two major political parties—the Movement for the Reform
4

of Haiti (“MODEREH”), and the Struggling People’s Party (“SPP”). 3 [Day 1 at 52:23–53:12].
They were “highly competitive” and the competition was “hard-edged.” [Id. at 62:24–63:7].
KOREGA was “aligned” with MODEREH. [Id. at 54:16–21].
In 2006, there was an election for mayor of Les Irois. [Day 1 at 25:11–12]. Viliena ran
as part of the MODEREH party, [Day 2 at 15:7–9], against William Lebon of the SPP and
Renault Vaillant of the ESKANP party. [Day 1 at 25:16–18; Day 2 at 45:12–19]. Viliena won
and became mayor. [Day 4 at 54:7–13].
KOREGA supported Viliena in the race. [Day 2 at 44:17–45:9]. For example, Osephita
Lebon, William Lebon’s sister, [Day 3 at 14:14–16, 19:21–22], testified that “[d]uring the
election, since Viliena was campaigning, he had a group of gangs that surrounded him and that
blocked William Lebon’s participation,” [id. at 16:21–23]. In addition, Plaintiff Nissandère
Martyr testified that Viliena himself said he was associated with KOREGA and wore KOREGA
shirts while campaigning. [Day 4 at 75:1–2, 78:5–15].
After the election, Viliena “became mayor with his group of gangs, they started killing
people, they beat people up.” [Day 3 at 17:2–7]. In addition, between 2007 and 2009, the time
period at issue in this case, KOREGA was “using [] method[s] such as arson and surrogate
killings and beatings and threats and intimidation.” [Day 1 at 57:1–12].
Moreover, Osephita testified, for example, that Viliena “as the mayor would do certain
things affiliated to KOREGA and KOREGA would always support him.” [Day 3 at 20:20–21:1].
KOREGA was “not in hiding,” Osephita explained, “[w]hen they come, everyone could see they
[we]re members of the KOREGA team, and they accompany [Viliena].” [Id. at 22:12–14].

3

The SPP is also referred to as “OPL.” [Day 1 at 53:8–11].

5

Osephita identified the following individuals as having been seen wearing KOREGA clothing:
Viliena, Hautefort Bajon, Pierrot Boileau, Benicoit Bell, and Jean Louis Bell. [Id. at 27:8–13].
In addition, Nissandère Martyr identified Lifaite Livert, Villeme Duclona, Agnel Jean, Pierrot
Boileau, and Meritus Beaublanc as always being “behind” Viliena wearing KOREGA shirts
during the election. [Day 4 at 78:10–22].
Once Viliena became mayor, he appointed Hautefort Bajon as the director of “Mayoral
Hall.” [Day 3 at 28:15–21]; see also [Day 5 at 37:11–13]. 4 In that role, he worked in the
mayor’s office as general secretary and directed the city hall for Viliena. [Day 1 at 25:3–5; Day
2 at 16:16–25]. Osephita Lebon also testified that Viliena had a “security team,” which included
Hautefort Bajon, Pierrot Boileau, Lifaite Livert, Benicoit Bell, Jean Louis Bell, and others. [Day
3 at 29:4–14]. Further, Jean Denais, who lived in Les Irois during the relevant time period,
testified that Viliena’s “mayoral staff” included Agnel Jean, Benicoit Bell, Lifaite Livert,
Michelet Noel, Meritus Beaublanc (a.k.a. Ti Amerikan), and Pierrot Boileau. [Day 3 at 100:9–
101:11]; see also [Day 5 at 38:19–23 (Viliena testifying that Meritus Beaublanc worked for him
at City Hall)]. Finally, Franckel Isme testified that Maxene Vilsaint worked at the City Hall for
the mayor. [Day 4 at 51:24–25, 54:14–21].
3.

July 27, 2007: Eclesiaste Boniface Killing

Plaintiff David Boniface grew up in Les Irois. [Day 2 at 11:7–9]. In 2006, he lived there
with his mother, father, brothers and sisters, including his younger brother Eclesiaste. [Id. at
11:17–21]. Viliena was David’s cousin, and he had “known him for quite some time.” [Id. at

4

Osephita Lebon herself was the mayor of Les Irois for four years around 1995. [Day 3 at 17:9–
12]. She testified that the mayor of Les Irois selects their “director of City Hall,” and that the
mayor has authority over his team such that “[w]hat he says, tells them to do, they do.” [Id. at
18:24–19:15].
6

13:20–25]. In the 2006 election, David voted for Viliena’s opponent, William Lebon of the SPP,
but David himself was not an SPP member. [Id. at 14:12–15:6].
David worked as a schoolteacher, but he was also taking classes about “violence,
injustices, and a lot of other things, including women’s rights.” [Day 2 at 12:8–20]. The classes
were offered through a national network for human rights called RNDDH, and he participated
from 2006–2008. [Id. at 12:12–13:5]. Through the classes, he became a certified human rights
advocate. [Id. at 13:10–19].
On the morning of July 27, 2007, David was at home when Nissage Martyr came to him
and told him there had been an argument between “Ms. Ostanie” and Viliena. [Day 2 at 15:19–
16:5]. Viliena had apparently hit Ostanie in the face after she had a dispute with the sanitation
department over a trash pile in front of her home. [Day 3 at 30:11–18, 31:20–25]; see also [Day
4 at 80:6–81:9]. Nissage had come to David because he was a certified human rights advocate.
[Day 2 at 16:1–5].
In Les Irois, a judge would typically help resolve disputes, and thus Viliena “arrested
Ostanie and took her to [Judge Bell’s] house to discuss the issue.” [Day 3 at 33:3–18]. After
Nissage came to see him, David went to the judge’s home, where Ostanie and Viliena were
explaining the incident. [Day 2 at 16:3–15, 17:4–13]. Osephita Lebon was present at the judge’s
house, [Day 3 at 33:21–22], as were Hautefort Bajon Meritus Beaublanc, Pierrot Boileau,
Benicoit Bell, Jean Louis Bell, Lifaite Livert, and others, [Day 2 at 16:16–24; Day 3 at 35:3–9].
Viliena saw that David was present, and asked the judge to make David leave because he
was a “certified human rights defender,” and Ostanie’s story had nothing to do with human
rights. [Day 2 at 17:4–16]. When he was asked to leave, David “said that everyone has rights,”
Bajon accused him of speaking in “harsh terms,” and Viliena “stormed out.” [Id. at 17:17–18:1];

7

see also [Day 3 at 101:21–102:24 (“David Boniface was asking the judge if officially the mayor
has the right to slap the lady. And [Viliena] was making a lot of – he was making a lot of
pressure on David Boniface. . . . All of his partisans who were there were putting pressure.”)].
After Viliena left, the judge told David to leave because “he said that [David’s] life was
threatened.” [Day 2 at 18:4–7]. While David was leaving, Viliena returned with “a group of
people who were not there before,” though Bajon was still present, and one of the members of
the group, Jean Louis Bell, “started swinging at” David. [Id. at 18:8–24]. A nearby pastor in the
area then grabbed David and brought him into a church for safety. [Id. at 19:1–7]; see also [Day
3 at 102:25–103:6 (“They were saying bad words to him. And they threatened to beat him.
Thanks to a pastor that was passing by who saw this, who saw that the men were -- threaten him
and wanted to hit him, so he said to David to go away from this place.”)].
David did not stay in the church long. [Day 2 at 19:8–9]. A group of his students and
their parents came to accompany him from the church, but Viliena and his group kept following
David up to the house of Nissage Martyr. [Id. at 19:8–15]. The group included Michelet Noel,
Agnel Jean, Pierrot Boileau, Meritus Beaublanc, Lifaite Livert, Rolande Vilsaint, and France
Ysemè. [Day 3 at 104:1–5]. Once he got to the front of Nissage’s house, “one of the partisans
of Mayor” Viliena “grabbed a bicycle” and threw it at David, but a parent “caught the bicycle in
midair to avoid [him] getting hit.” [Day 2 at 19:16–21]. Viliena then turned to Bajon and said,
“leave him alone, we’ll deal with him later.” [Id. at 19:24–20:2]. 5
Later, Viliena and “his crew,” the same men that were at the judge’s house, were standing
outside David’s home with guns, machetes, and clubs. [Day 3 at 36:12–37:25]. Viliena himself

5

Similarly, Osephita Lebon testified that she heard Viliena say to David that “[l]ater on I’m
coming for you.” [Day 3 at 35:24–36:1].
8

had a gun, as did Hautefort. [Id. at 37:24–38:4, 59:4–10]. They were calling for David, but were
told that he was not home. [Id. at 37:11–16]. They then asked someone to “[c]ome get
something that we have brought for David[,]” Eclesiaste came outside, and he was shot. [Id. at
38:12–25]; see also [id. at 59:11–23].
The testimony regarding the shooting was somewhat inconsistent. Lebon testified that it
was Viliena who shot Eclesiaste, and that after he was shot, Benicoit Bell picked up a cinder
block and dropped it on Eclesiaste’s head. [Day 3 at 39:3–23]. In contrast, Mers Ysemè,
Ysemè’s father, testified that he was standing nearby and that, shortly before the shooting,
Viliena told Hautefort that “[a]s we don’t find David, let’s shoot Eclesiaste like, in his place.”
[Id. at 61:8–18]; see also [id. at 74:17–22]. Mers said that Hautefort Bajon shot Eclesiaste. [Id.
61:16–18].
Later that night, David went to church with his mother. [Day 2 at 20:13–21]. While he
was at church, a friend came and told him that Eclesiaste had died. [Id. at 20:24–21:1]. He
couldn’t leave to go home, though, because Viliena’s group had “surrounded the church so they
could kill [him].” [Id. at 21:2–5]. Instead, he spent the night in the pastor’s home. [Id. at 21:6–
10].
The next morning, he and Judge Bell went to David’s home to start an investigation into
Eclesiaste’s death. [Day 2 at 21:13–25]. After seeing Eclesiaste’s body, “the population picked”
the body up and, with David present, “carried it to . . . Viliena’s office at the City Hall.” [Id. at
22:14–23]. 6 When they arrived, Viliena called the police “to come and evacuate” the group,

6

Osephita Lebon testified that it was tradition in Les Irois for the person who killed another to
bury them, and thus they had walked to city hall to “insist[]” that Viliena pay for Eclesiaste’s
funeral and bury him. [Day 3 at 42:14–18, 43:19–24].

9

“and the police officers hit [them] with the back of their shotgun and had everybody evacuate.”
[Id. at 22:24–23:4].
Thereafter, David buried Eclesiaste and then left Les Irois. [Day 2 at 23:5–14]. He left
“because Viliena’s father[] announced in public that they would have to kill [David] to put an
end to this story.” [Id. at 23:9–14]. 7 He went back and forth to Les Irois after he left, and
continued to receive threats related to his brother’s death, including from Viliena. [Id. at 29:13–
31:22]. David permanently left Les Irois in 2017 to live in another city in Haiti without his wife
and children. [Id. at 31:25–33:10].
4.

April 8, 2008: The Radio Station Incident

Ysemè was born and raised in Les Irois. [Day 2 at 43:4–5]. In the 2006 election, he
voted for William Lebon of the SPP party, though Ysemè was not himself a member of SPP.
[Id. at 45:20–46:4].
In April of 2008, Ysemè was a student, 21 years old, and living in Les Irois. [Day 2 at
47:3–8]. In his free time, he would go to the New Vision Radio (the “Radio Station”), [id. at
47:12–15, 18–21], which was established in Les Irois around March 2008, [Day 1 at 26:4–5].
The Radio Station, located at Nissage Martyr’s house, [Day 2 at 47:16–17], was founded
by Orelien Joquim, who was associated with SPP. [Day 4 at 55:9–56:3]. Viliena had been
opposed to setting it up. [Id. at 56:10–22]. Once it was set up, its programming included
political discussions that were critical of Viliena as mayor. [Day 5 at 60:3–5].

7

The statement regarding Viliena’s father was admitted into evidence for the limited purpose of
explaining why David left Les Irois. [Day 2 at 24:8–17].

10

In late March 2008, Vilfranc Larrieux, who worked for the town, [Day 3 at 80:6–11,
81:6–8], had a meeting with Viliena where Viliena requested that the Civil Protection Agency 8
in Les Irois take over the Radio Station. [Id. at 82:7–19]; see also [id. at 106:14–107:9]. The
Civil Protection Agency declined, and Viliena suggested that if they would not do it, he would
do it himself. [Id. at 106:14–107:9]. As a proposed compromise, the Civil Protection Agency
suggested Viliena either set up a radio station of his own, or set up a commission to negotiate
with the existing Radio Station to find common ground. [Id. at 82:20–83:11, 106:14–107:9].
A commission was apparently established and it called the Radio Station, which offered
to have Viliena come on a show. [Day 3 at 83:17–24]. He did, and Viliena and Orelien
proceeded to have an argument on air. [Id. at 84:4–11]; see also [id. at 106:14–107:9]. 9 In the
end, Viliena said, on the air, that he would shut down or destroy the Radio Station. [Day 2 at
48:2–8; Day 3 at 107:18–23; Day 4 at 57:2–18, 83:4–8].
On April 8, 2008, Ysemè was at the Radio Station with Nissage Martyr and his family.
[Day 2 at 48:9–14]. Around noon, Viliena and his “henchman” [sic] Maxene Vilsaint came by
the radio station on a motorcycle on their way to another town. [Id. at 48:15–21]. An hour and a
half later, they came back and stood near the Radio Station with a duffle bag. [Id. at 48:22–
49:17]. There were more than 30 people with them now, including Lissage Viliena (Viliena’s
father), Lifaite Livert, Agnel Jean, Gardy Jean-Pierre, Pierrot Boileau, Meritus Beaublanc,

8

The Civil Protection Agency was a group of about 30 individuals, who reported to Viliena as
mayor, and whose purpose “was to educate the population through diverse trainings. We hold
activities, social activities, in the town, and also to [sic] alert when there’s a disaster, catastrophe,
before, during and after.” [Day 3 at 81:6–82:4].
9

Thereafter, Larrieux went on air and said that the Radio Station was a community station for
the people, and that Viliena “had no right to take over the radio station because it was the
people’s radio station.” [Day 3 at 84:20–85:4]. He was beaten after making this statement. [Id.
at 85:5–86:11].
11

Villeme Duclona, Isme Frantz, Michelet Noel, Roland Vilsaint, and France Ysemè. [Id. at
49:18–50:12, 51:19–21; Day 3 at 62:5–63:7, 89:7–9, 108:3–13]. Viliena started “putting his
hand in the bag and he was handing, distributing” guns. [Day 2 at 49:18–50:5; Day 4 at 63:17–
64:10]. Once he was done, Viliena was armed with what looked like a handgun, Villeme
Duclona was armed with a shotgun, and others had machetes, ice picks, and clubs. [Day 2 at
50:13–51:7]. Ysemè and Nissage were unarmed. [Id. at 51:8–11].
Viliena then “made a gesture, he said, ‘guys, attack.’” [Day 4 at 64:11–13]. He led the
group toward the Radio Station, a gun was fired, and “everyone scattered around.” [Day 2 at
51:22–24, 94:17–21; Day 4 at 64:11–65:3]. They then entered the house, [Day 2 at 54:19–24],
where Ysemè and Nissage were hiding. [Id. at 55:3–14, 94:17–21].
a.

Ysemè

Once inside, Ysemè could not see Nissage and Viliena because there was a wall between
them, but he could hear them. [Day 2 at 55:9–14, 95:7–11]. Ysemè heard Nissage screaming
that he was being beaten up by Viliena, and also heard Nissage say that Viliena had “busted
[Nissage’s] head with [his] gun.” [Id. at 55:25–56:12]. The beating lasted more than a minute.
[Id. at 56:9–12].
Viliena then discovered Ysemè, [Day 2 at 56:22–25], and he
grabbed [Ysemè] by the collar, and he started beating [Ysemè] up[,] . . . hitting
[him] all over [his] face, [his] body. And then he dragged [Ysemè] through the
hallway all the way to the porch. . . . He said, “So this is where you’re hiding so
you can go and report this is who destroyed the radio? I’m going to put a noose
around your neck, and then I’m going to hang you on the public plaza.”

12

[Id. at 56:22–57:9]. 10 Eventually Viliena “held [Ysemè’s] hand and said to Lifaite, ‘Restrain
Juders. We’re going to hang him on the public plaza.’” [Id. at 57:24–58:2].
At this point, “all of [Ysemè’s] bones were cracking because [he] was in pain from all the
blows from [Viliena][,] [a]nd Lifaite was holding [him] very tightly. [He] felt like [his] bones
were breaking.” [Day 2 at 58:5–8]. Meanwhile, Villeme Duclona was “standing next to the
porch” with a shotgun. [Id. at 58:9–24].
Lifaite let go of Ysemè so he could “take equipment” and “vandalize,” at which point
Ysemè “realized that [he] was free, so [he] ran[,] . . . [a]nd while [he] was getting away . . . [he]
heard . . . Viliena’s voice very forcefully sa[y] . . . ‘Villeme, shoot him. Shoot Juders.’” [Day 2
at 58:25–59:6]. Duclona then shot Ysemè “in [his] eyes,” one of which he lost, [id. at 59:7–17;
Day 3 at 9:20–22]; see also [Day 3 at 64:24–65:4], and he was also hit in his head, arm, stomach,
and abdomen, [Day 2 at 59:13–17]. At the time of trial, he still had shotgun pellets in his head
and throughout his body, was in consistent pain, and struggled to do certain types of jobs. [Id. at
62:3–63:22]. Ysemè’s father covered his medical costs, which he testified were about $16,500
Haitian dollars. [Day 3 at 66:16–68:4].
Ysemè left Les Irois in 2017 for safety reasons, namely because he “didn’t want [Viliena]
and his crew to kill him.” [Day 2 at 87:10–14]. He is unable to live with his “wife” and family
and as of the time of trial, had seen them twice since 2017. [Id. at 87:15–20]. 11

10

In addition, the jury heard testimony that around this time, “Villeme Duclona, Gardy JeanPierre, Lifaite Livert, Lissage Viliena, Agnel Jean, and many others” were there, and they were
“vandalizing the radio station, removing all the equipment from the station.” [Day 2 at 57:14–
23].
11

On cross-examination, Ysemè testified that “I have a wife, but I’m not married.” [Day 2 at
91:10–12].

13

b.

Nissage Martyr

Nissage Martyr was also attacked and shot during the Radio Station incident. See [Day 2
at 64:25–65:3; Day 3 at 63:24–64:3; Day 4 at 64:19–65:16]. Specifically, in addition to Viliena
“bust[ing] [Nissage’s] head with the butt of his weapon,” [Day 2 at 64:25–65:3], Viliena told
Villeme to shoot Nissage, [Day 3 at 63:24–64:4]. He did not immediately do so, so Viliena said
“I ask you to shoot Nissage. I’m here for a mission that you need to follow. I asked you to shoot
Nissage.” [Id.]; see also [Day 4 at 65:8–16]. Villeme then shot Nissage in the leg, [Day 3 at
64:5–14], which was later amputated, [Day 2 at 64:25–65:3].
Nissage Martyr died on March 24, 2017. [Day 2 at 77:21–25; Day 4 at 87:4–7]. 12
Thereafter, Nissandère Martyr replaced Nissage as the plaintiff in this suit. [Day 4 at 87:8–10].
After doing so, Nissandère received threats, including from Viliena himself. [Id. at 87:11–25].
When Viliena threatened him, Villeme Duclona, Lifaite Livert, Agnel Jean, Pierrot Boileau,
Meritus Beaublanc, and “many others” were with Viliena. [Id. at 88:1–6].
5.

Criminal Proceedings in Haiti

In 2018, Viliena participated in a criminal trial in Haiti regarding the Eclesiaste Boniface
killing and the attack on the Radio Station. [Day 5 at 84:17–25]. Viliena was asked a total of ten
questions at that trial, and the record was three pages long. [Id. at 85:9–14]. Concannon
reviewed the case record and, based on his review, testified that
The questions -- there weren’t many to begin with and the questions that were asked
were softball questions. He was not confronted with any facts. There were no
follow-ups, no efforts to ask him to explain anything. And not only were they
softballs, they were also irrelevant softballs. All the questions were asked about
things other than -- other than the attack on the radio station and the killing of
Eclesiaste Boniface. In fact, you know, the killing of Mr. Boniface was a big part
of this case and had been processed by the justice system, you know, at this point
for close to ten years. There was not -- in the whole record of the trial, there’s no - the word “Eclesiaste” does not appear. The word “Boniface” does not appear. I
12

Testimony did not establish that his death was related to his injuries.
14

don’t believe the word “radio” appears either. Juders Ysemè and Nissage Martyr,
they’re mentioned but there’s no mention in the entire transcript of any of the details
of the attacks or of any evidence that was created by the courts over a decade.
[Id. at 85:15–86:8]. After the trial, the judge decided without any reasoning that Viliena was not
guilty. [Id. at 86:9–24]. Concannon testified that, in his opinion, the result was “highly
consistent with corrupt verdicts” in Haiti. [Id. at 86:25–87:6].
B.

Procedural History

From March 13, 2023 through March 21, 2023, the parties presented their cases to a jury,
which returned a verdict in favor of Plaintiffs on the extrajudicial killing, attempted killing, and
torture claims, [Verdict at 2; ECF Nos. 251–255, 257–258], and in favor of Viliena on arson
claims, [Verdict at 5]. 13 Viliena filed the instant motion for judgment as a matter of law
(“JMOL”) and/or a new trial, as well as remittitur, on April 18, 2023. [ECF No. 261]. Plaintiffs
opposed on May 18, 2023. [ECF No. 269].
III.

DISCUSSION
A.

Judgment as a Matter of Law
1.

Previously Dismissed Legal Arguments

As an initial matter, Viliena raises several legal arguments that this Court has already
considered and rejected at various stages of the case. First, he argues there is no secondary
liability under the Torture Victim Protection Act (“TVPA”), such that he cannot be held liable
for the actions of others as an aider and abettor. [ECF No. 262 at 2]. The Court rejected this
argument in its order on Viliena’s motion to dismiss, finding, for example, that (1) “the TVPA
contemplates liability against officers who do not personally execute the [alleged] torture or
extrajudicial killing,” Boniface v. Viliena, 338 F. Supp. 3d 50, 67 (D. Mass. 2018) (quoting
13

Because the alleged arson is not at issue in this motion, the Court does not describe the facts
surrounding it.
15

Mohamad v. Palestinian Auth., 566 U.S. 449, 458 (2012)); (2) “since domestic law sets the
standards for the TVPA, secondary or indirect theories of liability recognized by U.S. law are
available for claims brought under the TVPA,” id. (quoting Doe v. Drummond Co., 782 F.3d
576, 607 (11th Cir. 2015)); and (3) “[s]ome courts have recognized that a claim for indirect
liability under an aiding and abetting theory is cognizable under the TVPA,” id. (citing
Drummond, 782 F.3d at 608). Viliena provides no basis for the Court to reach a different result
here, and it declines to do so.
Second, Viliena avers that the TVPA provides no remedy for attempted extrajudicial
killing, arguing that “[t]he plain language of the TVPA does not contemplate an ‘attempted’
extrajudicial killing as a recoverable offense.” [ECF No. 262 at 3 (citing Moskal v. United
States, 498 U.S. 103, 108 (1990))]. The Court previously found that “several courts have
permitted such claims to proceed,” Boniface, 338 F. Supp. 3d at 67–68 (first citing Doe v.
Constant, 354 Fed. App’x 543, 547 (2d Cir. 2009) (affirming entry of judgment, inter alia, for
attempted extrajudicial killing under the TVPA); then citing Warfaa v. Ali, 33 F.Supp.3d 653,
666 (E.D. Va. 2014), aff’d, 811 F.3d 653 (4th Cir. 2016) (denying motion to dismiss claims
under TVPA for, inter alia, attempted extrajudicial killing); and then citing Yousuf v. Samantar,
No. 1:04-cv-1360 LMB/JFA, 2012 WL 3730617, at *16 (E.D. Va. Aug. 28, 2012) (entering
default judgment on claims including attempted extrajudicial killing under the TVPA)), and
noted that it was “not aware of any cases determining that a claim for attempted extrajudicial
killing is not actionable under the TVPA,” id. at 68. Again, Viliena has provided no reason for
the Court to reach a different conclusion here, and it declines to do so.
Third, Viliena states that the Court does not have subject matter jurisdiction over the
TVPA claims, and that the evidence at trial—without pointing to any specific evidence—

16

“confirmed the fact that the TVPA claim should be dismissed for lack of jurisdiction.” [ECF No.
262 at 9–10]. The Court previously found that it has jurisdiction, see, e.g., Boniface v. Viliena,
417 F. Supp. 3d 113, 118–22 (D. Mass. 2019); Boniface, 338 F. Supp. 3d. at 63–64, and again
Viliena has provided no reason for the Court to reach a different result here.
2.

Third Party Recovery for Torture

Viliena next argues, for the first time, that the TVPA does not specifically provide for
recovery by third parties (here, Nissandère Martyr) for torture. See [ECF No. 262 at 3 (citing
Doe v. Qi, 349 F. Supp. 2d 1258 (N.D. Cal. 2004))]. In response, Plaintiffs argue that Viliena
waived this argument by not raising it in his Rule 50(a) motion, and that, in any event,
Nissandère Martyr is not a third party, but was instead substituted as a plaintiff for his father.
[ECF No. 269 at 19]. The Court agrees that Viliena waived this argument, see Correa v. Hosp.
S.F., 69 F.3d 1184, 1195–96 (1st Cir. 1995) (“The suggestion that the Rule 50(a) motion
preserved the defense is little short of jejune. A motion for judgment as a matter of law made at
the close of all the evidence preserves for review only those grounds specified at the time, and no
others.”). The Court also notes that Nissandère is not a third/non-party, but rather a substituted
party who “steps into the same position as the original party.” Carrizosa v. Chiquita Brands
Int’l, 47 F.4th 1278, 1337 (11th Cir. 2022) (quoting Ransom v. Brennan, 437 F.2d 513, 516 (5th
Cir. 1971)); see also Boniface, 338 F. Supp. 3d at 71–72 (substituting Nissandère Martyr as a
plaintiff in place of Nissage Martyr under Federal Rule of Civil Procedure 25). Accordingly, the
Court will not grant JMOL on the basis that the TVPA does not provide for Nissandère’s
recovery.
3.

Control Person Liability

Viliena next argues that, with respect to the attempted killings of Ysemè and Nissage
Martyr during the Radio Station incident, the evidence at trial does not support a finding that he
17

had control over the shooter, Villeme Duclona. [ECF No. 262 at 3–4]. Specifically, he argues
that
[t]here was no testimony or evidence regarding the relationship between the
Defendant and Vileme [sic] Duclona, beyond the Defendant’s acknowledgment
that he knew Duclona as someone who lived in Les Irois and the testimony of the
Plaintiffs that Duclona was often seen in the presence of the Defendant and as such
was regarded by them as part of the Defendant’s “crew.”
Other than the testimony that Mr. Duclona was sometimes seen in the vicinity of
the Defendant there was no evidence from which the jury could find that the
Defendant had the ability to control or direct the actions of Mr. Duclona or that the
Defendant otherwise took actions consistent with the requirements to establish
solicitation, conspiracy or aiding and abetting liability. . . .
There was no evidence presented to the jury from which it could reasonably find
that a superior/subordinate relationship existed between the Defendant and the
shooter Duclona or that the actions of Duclona resulted from any direction or order
initiated by the Defendant.
[Id. at 3–5]. Even if Plaintiffs were advancing a control person theory of liability, which they are
not, see [ECF No. 269 at 20–21], the Court disagrees with Defendant’s characterization of the
facts. Among other things, the jury could have found the following facts supporting a finding
that Duclona was a member of KOREGA and under Viliena’s control when he shot Ysemè and
Nissage Martyr: (1) Viliena was the mayor of Les Irois, [Day 1 at 25:11–15]; (2) KOREGA was
a group “bear[ing] all the trademarks and characteristics of [a] community-based armed
group[],” [id. at 33:16–22], and such groups “have . . . a symbiotic relationship with a patron, or
patron, usually a politician who they serve. And when they serve this politician, they receive
benefits in return, material and financial benefits and access to power,” [id. at 33:23–34:17]; (3)
as the mayor, Viliena “would do certain things affiliated to KOREGA and KOREGA would
always support him,” [Day 3 at 20:20–21:1]; (4) Duclona was always “behind” Viliena with a
KOREGA shirt during the election, [Day 4 at 78:10–22]; (5) Viliena initiated and led the attack
on the Radio Station, in which Duclona participated, [Day 2 at 49:18–50:12, 51:19–24, 94:17–

18

21; Day 4 at 64:8–13]; (6) Viliena “forcefully” told Duclona to shoot Ysemè, which he did, [Day
2 at 58:25–59:17; Day 3 at 9:20–22]; and (7) Viliena told Duclona to shoot Nissage, and when he
did not immediately do so, Viliena repeated that “I ask[ed] you to shoot Nissage. I’m here for a
mission that you need to follow. I asked you to shoot Nissage,” and then Duclona did shoot
Nissage, [Day 3 at 63:24–64:14; Day 4 at 65:8–16]. Accordingly, the Court disagrees with
Viliena’s characterization of the facts with respect to control person liability, and declines to
grant JMOL on this ground.
4.

Secondary Liability

Viliena next argues that “[t]here were no facts presented to the jury from which it could
reasonably find that he provided “knowing substantial assistance” to Villeme Duclona, or that
the two of them engaged in any conspiracy. [ECF No. 262 at 5–6]. Specifically, he argues that
“Defendant had no connection to the victims, who were both unaffiliated with any political party
nor advocating any political cause. There was no evidence that either the Defendant or Duclona
engaged in any planning with respect to the event,” and that “[t]here was no evidence as to any
of the[] elements” of a conspiracy claim, namely that
1. That two or more persons agreed to commit a wrongful act; 2. That Defendant
Viliena joined the conspiracy knowing of at least one of the goals of the conspiracy
and intending to help accomplish it; and 3. That one or more of the alleged wrongful
acts was committed by someone who was a member of the conspiracy and acting
in furtherance of the conspiracy.
[Id. at 5 (citing Day 6 at 31:10–17)].
Again, the Court disagrees with Viliena’s characterization of the evidence. In addition to
the facts above regarding control person liability, see supra, the jury could have found the
following additional facts that would support that Viliena provided “knowing substantial
assistance” to Duclona and that they engaged in planning and a conspiracy surrounding the
Radio Station incident: (1) Viliena said publicly that he would shut down, or destroy, the Radio
19

Station, [Day 2 at 48:2–8; Day 3 at 107:18–23; Day 4 at 57:2–18, 83:4–14]; (2) a group of 30
individuals, including Duclona, met outside the Radio Station and Viliena provided them with
weapons, [Day 2 at 49:18–51:21]; (3) Viliena led the group into the Radio station after telling
them to “attack,” [Day 2 at 51:22–24, 94:17–21; Day 4 at 64:11–65:3]; and (4) during the attack,
Viliena told Duclona to shoot Ysemè and Nissage Martyr, which he did, [Day 2 at 58:25–59:17;
Day 3 at 9:20–22, 63:24–64:4]. Accordingly, the Court declines to grant JMOL on the ground
that the facts at trial could not support a claim for secondary liability.
5.

Death of Eclesiaste Boniface

Viliena further argues that the jury could not have “reasonably determine[d] the identity
of the shooter” of Eclesiaste Boniface based on the evidence at trial. [ECF No. 262 at 6].
Specifically, he avers that Lebon testified that Viliena was the shooter, whereas Ysemè testified
that Bajon was the shooter. [Id.]. In response, Plaintiffs argue that “there was evidence from
which the jury could reasonably determine that Defendant was directly liable, as the shooter
himself, or that he was secondarily liable, having directed or ordered; solicited; aided and
abetted; or conspired with Hautefort to shoot Eclesiaste.” [ECF No. 269 at 26]. In addition,
Plaintiffs assert that “[f]ollowing the jury’s determination, it would be improper for the Court to
‘resolve conflicts in the testimony or to evaluate the credibility of witnesses when ruling on a
Rule 50(b) motion.’” [Id. at 27 (quoting Rogers v. Cofield, No. 08-10684-MBB, 2011 WL
6140974, *3 (D. Mass. Dec. 8, 2011) (citing Mandel v. Boston Phoenix, Inc., 456 F.3d 198, 208
(1st Cir. 2006) (under Rule 50, courts “may not consider the credibility of witnesses, resolve
conflicts in testimony, or evaluate the weight of the evidence”)))].
The Court agrees with Plaintiffs. The jury could have found Viliena responsible for
Eclesiaste’s death, either as the shooter himself or as the person who ordered the shooting. See
[Day 3 at 39:3–5 (Lebon testifying the Viliena shot Eclesiaste); id. at 61:8–18 (Mers Ysemè
20

testifying that Viliena told Hautefort that “[a]s we don’t find Davis, let’s shoot Eclesiaste like, in
his place.”)]. Accordingly, drawing all inferences in favor of the jury verdict, the Court declines
to grant JMOL on the ground that there was conflicting evidence about who shot Eclesiaste
Boniface. See Rogers, 2011 WL 6140974, *3; see also Osorio, 659 F.3d at 84 (the Court must
consider “the evidence presented to the jury, and all reasonable inferences that may be drawn
from such evidence, in the light most favorable to the jury verdict.” (quoting Granfield, 597 F.3d
at 482)).
6.

State Action

Viliena next argues that the evidence at trial does not support a finding of state action
because it could not establish that there was a campaign of political dominance carried out
against the opposition party SPP. [ECF No. 262 at 6]. Rather, he argues the evidence showed
that none of the Plaintiffs were members of or “had any control or dominance over” SPP, and
that Viliena was “not . . . a political actor[,] but . . . a thin-skinned and petty person who had
overreacted.” [Id. at 6–7]. Moreover, he avers that “[n]o jury could reasonably conclude that
[he] was a state actor with respect to the actions complained of or that the acts could not have
been accomplished absent the exercise of such power” because (1) “[b]oth incidents involved a
mob of people”; (2)“there was no evidence presented that the assemblages were part of some
state action”; and (3) “[t]here was no use of state force and no evidence whatsoever that the color
of law of the Republic of Haiti played any material part.” [Id. at 8].
“[F]or purposes of the TVPA, an individual acts under color of law . . . when he acts
together with state officials or with significant state aid.” Boniface, 338 F. Supp. 3d at 69
(quoting Chowdhury v. Worldtel Bangl. Holding, Ltd., 746 F.3d 42, 52–53 (2d Cir. 2014)
(internal quotation marks and citations omitted)). “At least one court has determined that a

21

mayor is a state actor.” Id. (citing Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d
1242, 1249 (11th Cir. 2005)).
In denying Defendant’s motion to dismiss, the Court found the following with respect to
state action:
during each of the three incidents that are the focus of the Complaint, Defendant
brought along members of his mayoral staff and instructed them to engage in
violent acts. In addition, each of the incidents were related to Defendant's duties as
mayor. The July 2007 incident was apparently sparked by an altercation that
occurred while Defendant was accompanying a sanitation crew. The April 2008
incident occurred after Defendant had been instructed by other government officials
not to shut down the radio station, presumably in his capacity as mayor. Further,
Defendant apparently desired to put an end to the radio station because he believed
it threatened his political power. . . . Therefore, the Complaint has sufficiently
alleged that, during the incidents in question, Defendant was acting in his official
capacity as mayor, and used the resources available to him through that office, to
target individuals he believed to be a threat to his ability to remain in office and
exert power. This is sufficient to allege that Defendant acted under the “color of
law.”
Boniface, 338 F. Supp. 3d at 69–70. Evidence at trial bore these allegations out. First, the jury
could have credited testimony that community-based armed groups, like KOREGA, [Day 1 at
33:16–22], “have . . . a symbiotic relationship with a patron, or patron, usually a politician who
they serve. And when they serve this politician, they receive benefits in return, material and
financial benefits and access to power[,]” [id. at 33:23–34:17]. Second, the jury could have
reasonably concluded that KOREGA members included Hautefort Bajon, Benicoit Bell, Jean
Louis Bell, Lifaite Livert, Villeme Duclona, Agnel Jean, Pierrot Boileau, and Meritus Beaublanc,
and that they “served” Viliena in his capacity as mayor. See [id.; Day 3 at 20:20–21:3 (Viliena
“as the mayor would do certain things affiliated to KOREGA and KOREGA would always
support him.”), 27:8–13 (the following individuals had been seen wearing KOREGA clothing:
Viliena, Hautefort Bajon, Pierrot Boileau, Benicoit Bell, and Jean Louis Bell); Day 4 at 78:10–22
(Lifaite Livert, Villeme Duclona, Agnel Jean, Pierrot Boileau, and Meritus Beaublanc were

22

“behind” Viliena with KOREGA shirts during the election)]. Third, several of these individuals
were part of Viliena’s actual mayoral administration. See [Day 3 at 28:15–21 (Hautefort Bajon
was the director of “Mayor Hall”), 29:4–14 (Viliena had a “security team,” which included
Hautefort Bajon, Pierrot Boileau, Lifaite Livert, Benicoit Bell, and Jean Louis Bell), 100:25–
101:11 (Viliena’s “mayoral staff” included Agnel Jean, Benicoit Bell, Lifaite Livert, Michelet
Noel, Meritus Beaublanc, and Pierrot Boileau); Day 4 at 54:14–21 (Maxene Vilsaint worked at
the City Hall for the mayor)]. Fourth, these individuals were directly involved in both the July
2007 killing of Eclesiaste Boniface, see [Day 3 at 36:13–37:25 (on July 27, 2007, Viliena and
“his crew,” the same men that were at the judge’s house, were standing outside David’s home
with guns, machetes, and clubs)]; see also [Day 2 at 16:16–21 (Hautefort Bajon and Meritus
Beaublanc were at the judge’s house); Day 3 at 35:3–9 (Pierrot Boileau, Benicoit Bell, Jean
Louis Bell and Lifaite Livert went to the judge’s house)], and the April 2008 Radio Station
incident, see [Day 2 at 49:8–50:12 (Maxene Vilsaint, Lifaite Livert, Agnel Jean, Gardy JeanPierre, Pierrot Boileau, Meritus Beaublanc, Villeme Duclona approached the radio station with
weapons)], both of which the jury could have found that Viliena led in his capacity as mayor, see
[Day 3 at 30:11–33–18 (Viliena “arrested Ostanie and took her to [Judge Bell’s] house to
discuss” an issue that arose with the sanitation department), 39:3–5 (Viliena shot Eclesiaste),
61:8–18 (Viliena ordered Hautefort to shoot Eclesiaste)]; see also [Day 4 55:9–56:3 (the Radio
Station was affiliated with SPP), 64:11-65:3 (Viliena “took the lead” and told the group to
“attack” the Radio Station), 83:4–14 (Viliena said he would destroy the Radio Station); Day 5 at
60:3–5 (the Radio Station had political discussions that were critical of Viliena as mayor)].
Finally, the jury could have found that the state’s investigation and trial regarding the incidents
were perfunctory and “highly consistent with corrupt verdicts” in Haiti. [Day 5 at 84:17–87:6].

23

These facts support a finding that Viliena acted under color of law as mayor of Les Irois, that he
was supported by mayoral staff officials and/or affiliated groups, and that Viliena knew that, in
his capacity as mayor, the state was unlikely to condemn or punish him for his actions. Thus, the
Court declines to grant JMOL on the basis that Defendant did not act under color of law.
7.

David Boniface’s Standing

Viliena argues that there is “no evidence from which a jury could reasonably find that
David Boniface is a proper claimant” because “Massachusetts law does not permit recovery by
siblings for wrongful death,” and because state law should govern the assessment of liability
under the TVPA and who is a proper plaintiff for purposes of recovery. [ECF No. 262 at 9 (first
citing Drummond, 782 F.3d at 607; and then citing Bobick v. U.S. Fid. & Guar. Co., 790 N.E.2d
653, 661 (Mass. 2003))]. Plaintiffs respond that under the TVPA, “where state law would
provide no remedy, a court may apply the foreign law that would recognize the Plaintiff’s
claim.” [ECF No. 269 at 20 (quoting Drummond, 782 F.3d at 607)]. Thus, Plaintiffs aver, “[i]t
is . . . settled that standing under the TVPA can arise from foreign or domestic law.” [Id.].
Moreover, Plaintiffs state that David has standing under Massachusetts law because he was
appointed as the personal representative of Eclesiaste’s estate. [Id. at 21].
As an initial matter, standing is a question of law, not fact, and thus it was not the role of
the jury to determine whether David has standing. See Steir v. Girl Scouts of the USA, 383 F.3d
7, 15 (1st Cir. 2004) (“A district court’s determination that a plaintiff lacks standing is a question
of law.”); Wilson v. HSBC Mortg. Servs., Inc., 744 F.3d 1, 8 (1st Cir. 2014) (“[T]he question of
whether certain facts establish standing is a question of law.”). Because Defendant only argues
that David is not a proper claimant under Massachusetts law, the Court addresses only that issue,
and finds that he is.

24

The Court already addressed a similar issue with respect to Nissandère Martyr, finding
the following:
“[a] person may be a ‘successor’ under [Federal Rule of Civil Procedure] 25(a)(1)
if [he or] she is (1) the primary beneficiary of an already distributed estate; (2)
named in a will as the executor of the decedent’s estate, even if the will is not
probated; or (3) the primary beneficiary of an unprobated intestate estate which
need not be probated.” In re Baycol Prod. Litig., 616 F.3d 778, 784–85 (8th Cir.
2010) (citations omitted) . . . .
Plaintiffs filed a supplemental document which is apparently an order of the
Massachusetts Probate and Family Court appointing Nissandère Martyr as the
personal representative of Nissage Martyr for purposes of Mass. Gen. Laws ch.
190B, the Massachusetts Uniform Probate Code. [ECF No. 48-1]. Accordingly,
the Court concludes that this order, in combination with the [Mario] Joseph
Declaration [that explained that Nissandère was his father’s successor-in-interest],
is sufficient to demonstrate that Nissandère Martyr is the legal successor or
representative of Nissage Martyr. Therefore, Plaintiffs have satisfied their burden
to prove that the motion to substitute should be granted.
Boniface, 338 F. Supp. 3d at 72. The Massachusetts Probate and Family Court similarly
appointed David Boniface as the personal representative of Eclesiaste’s estate. [ECF No. 482]. 14 Thus, for largely the same reasons that it found that Nissandère Martyr had standing to
bring claims on behalf of Nissage, the Court will not grant JMOL on the basis that David
Boniface is not a proper claimant.

14

Mario Joseph, an attorney who represents David Boniface and Ysemè in Haiti, [ECF No. 20-1
¶¶ 2, 4], similarly declared that “under the Haitian law of succession, David is an heir-at-law of
his deceased brother, Eclesiaste, and David is the appointed representative of his elderly father,
Salvane Boniface, who is also an heir-at-law,” [ECF No. 20 at 9], and further that the Haitian
courts have allowed David to pursue civil claims for the wrongful death of his brother, [id. at
10].

25

B.

New Trial Motion 15
1.

Expert Testimony

Viliena firsts requests a new trial on the grounds that the jury was unfairly prejudiced by
the expert testimony of Maguire and Concannon because they “had [no] particular knowledge
about the venue of the facts in this matter, Les Irois, nor offered any testimony that directly
related to the acts involved in this action.” [ECF No. 262 at 11]. Instead, they testified about
“crime in Haiti and the offensive and insidious conduct of bad political actors,” which was not
enough to establish any connection between Viliena and KOREGA. [Id.]. In sum, Viliena
argues that “[t]he lengthy testimony of experts, while potentially relevant to the efficacy of the
Haitian judgment in favor of the Defendant, was instead employed in a manner to characterize
Haiti and Haitian politicians as universally criminal. This unfairly, and wrongly, influenced the
jury.” [Id. at 11–12].
Both Maguire and Concannon provided opinions that were supported by their expertise,
see, e.g., [Day 1 at 53:20–57:12 (Maguire testifying about KOREGA’s relationship with
MODEREH and its operations in Les Irois and explaining the basis for his knowledge, after
initial objections, for the same); Day 4 at 25:10–21 (Concannon testifying without objection
regarding retributive violence in Haiti, and the basis of his knowledge for same)], and Defendant
does not point the Court to any particular overruled objection at trial that would call into question
the basis for the opinions they provided, see [ECF No. 262 at 10–12]. Rather, the crux of

15

In addition to the arguments for a new trial addressed below, Viliena argues that “[i]n applying
its own independent judgment to the question of state action and the other issues raised [in his
motion for judgment as a matter of law], the Court should grant a new trial.” [ECF No. 262 at
10]. The Court denies this request for largely the same reasons explained above. See Lama, 16
F.3d at 477 (“[W]hen an argument that the evidence was insufficient forms the basis of a motion
for new trial, the district court is generally well within the bounds of its discretion in denying the
motion using the same reasoning as in its denial of a motion for judgment as a matter of law.”).
26

Defendant’s argument appears to be that testimony regarding KOREGA and the political
situation in Haiti was unfairly prejudicial because it was not specifically connected to Viliena or
the two incidents at issue, and instead merely “characterized Haiti and Haitian politicians as
universally criminal.” See [id. at 11–12].
Maguire and Concannon provided general opinions regarding, for example, “the
conditions of political violence in Haiti and particularly organizations that are characterized as
community-based armed gangs, armed groups,” [Day 1 at 33:10–12 (Maguire)]; the fact that
individuals who “pursue claims against powerful people in Haiti for human rights violations . . .
face a very significant risk of retributive violence,” and that “Haiti’s justice system is pervasively
corrupt and subject to deep political interference,” [Day 4 at 24:22–25:9 (Concannon)]. Then,
fact witnesses provided testimony that supported those general opinions in the context of the
claims made here, including that Viliena was associated with KOREGA and KOREGA did his
bidding. See, e.g., [Day 3 at 22:12–15 (KOREGA was “not in hiding,” Osephita Lebon
explained, “[w]hen they come, everyone could see they [we]re members of the KOREGA team,
and they accompany [Viliena].”)]; see also id. at 17:2–7 (Viliena “became mayor with his group
of gangs, they started killing people, they beat people up.”)].
In sum, Maguire and Concannon’s opinions, in combination with the fact witness’
testimony, supported the jury verdict and there is nothing to suggest that their testimony resulted
“in a blatant miscarriage of justice.” Foisy, 356 F.3d at 146 (quoting Sanchez, 37 F.3d at 717).
Thus, the Court declines to grant a new trial based on the experts’ testimony.
2.

Plaintiffs’ Closing Argument

Viliena next argues that, during closing arguments, Plaintiffs improperly tried to
rehabilitate the credibility of Ysemè with facts not in evidence. [ECF No. 262 at 12].
Specifically, he avers that on direct examination Ysemè testified that he was married, on cross he
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admitted he was not married, and then only in their rebuttal closing argument did Plaintiffs say
that calling an unmarried partner one’s wife is “just a cultural thing” in Haiti. [Id.]. Viliena
states that in doing so, “Plaintiffs improperly sought to supplement and correct the record by
arguing facts that were not in evidence in a way that was unfair and unduly prejudicial.” [Id.].
Plaintiffs, in response, characterize Viliena’s argument as an untimely objection. [ECF No. 269
at 35].
Sustaining an untimely objection requires Viliena to show that
(1) an error was committed; (2) the error was “plain” (i.e. obvious and clear under
current law); (3) the error was prejudicial (i.e. affected substantial rights); and (4)
review is needed to prevent “a miscarriage of justice or [if the error has] seriously
affected the fairness, integrity or public reputation of the judicial proceedings.”
Granfield v. CSX Transp., Inc., 597 F.3d 474, 490–91 (1st Cir. 2010) (quoting Coastal Fuels of
P.R., Inc. v. Caribbean Petroleum Corp., 79 F.3d 182, 189 (1st Cir. 1996)). Here, the Court finds
that even if the rebuttal statement was improper and it was error to allow the statement to go
unaddressed, the relevant testimony was very tangential to the facts at issue, and the verdict was
supported by ample evidence, such that a new trial is not required to prevent a miscarriage of
justice. See Granfield, 597 F.3d at 490–91; see also Foisy, 356 F.3d at 146; cf. United States v.
Taylor, 54 F.3d 967, 977 (1st Cir. 1995) (under plain error standard, “reversal is justified only if
the illegitimate portion of the closing argument ‘so poisoned the well that the trial’s outcome was
likely affected.’” (quoting United States v. Mejia-Lozano, 829 F.2d 268, 274 (1st Cir. 1987))).
C.

Remittitur

Viliena finally argues that the Court should remit the damages award because, for
example, “[o]ther than emotion and sympathy there was no basis whatsoever for the award of
these amounts and they lack any basis in the evidence presented to the jury,” “[t]he TVPA does
not provide for the recovery of punitive damages,” and “[t]he $11 million awarded to the

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Plaintiffs in this action serves no deterrent effect, is grossly excessive and stands only as a
symbolic gesture devoid of any recognizable or legitimate judicial purpose.” [ECF No. 262 at
12–14].
“[A] district court has discretion to order a remittitur if such an action is warranted in
light of the evidence adduced at trial.” Trainor v. HEI Hosp., LLC, 699 F.3d 19, 29 (1st Cir.
2012) (citing Kelley v. Airborne Freight Corp., 140 F.3d 335, 355 (1st Cir. 1998)). That said, “a
party seeking remittitur ‘bears a heavy burden,’” Currier v. United Techs. Corp, 393 F.3d 246,
256 (1st Cir. 2004) (quoting Koster v. TWA, 181 F.3d 24, 34 (1st Cir. 1999)), and “‘the
obstacles which stand in the path of’ such claims of excessiveness ‘are formidable ones,’” Trull
v. Volkswagen of Am., Inc., 320 F.3d 1, 9 (1st Cir. 2002) (quoting Wagenmann v. Adams, 829
F.2d 196, 215 (1st Cir. 1987)). Moreover, “[t]ranslating legal damage into money damages is a
matter ‘peculiarly within a jury’s ken,’ especially in cases involving intangible, non-economic
losses.” Travers v. Flight Servs. & Sys., Inc., 808 F.3d 525, 540 (1st Cir. 2015) (quoting Trull,
320 F.3d at 9). “[T]he jury’s assessment of damages will not be disturbed unless it is ‘grossly
excessive, inordinate, shocking to the conscience of the court, or so high that it would be a denial
of justice to permit it to stand.’” Trull, 320 F.3d at 9 (quoting Wagenmann, 829 F.2d at 215); see
also Trainor, 699 F.3d at 29 (“In exercising this discretion, the court is obliged to impose a
remittitur ‘only when the award exceeds any rational appraisal or estimate of the damages that
could be based upon the evidence before it.’” (quoting Wortley v. Camplin, 333 F.3d 284, 297
(1st Cir. 2003) (internal quotation marks omitted)).
With respect to compensatory damages, the Court provided the following instruction,
which Viliena does not take issue with in his briefing:
Compensatory damages are the measure of the loss or injury sustained by the
injured plaintiff, and may embrace shame, mortification, humiliation, indignity to

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the feelings, and the like. You may also award compensatory damages for pain and
suffering, physical disfigurement and mental and emotional distress. There is no
exact standard for fixing the compensation to be awarded for these elements of
damages. Any award you make must be fair in light of the evidence presented at
trial.
In determining the amount of compensatory damages that a plaintiff may be entitled
to recover, you may consider the reasonable value of medical care incurred by the
plaintiff for the treatment and cure of the injury; the plaintiff’s physical mental and
emotional pain and suffering to date; and reasonable probable future physical,
mental, and emotional pain and suffering; any harm to plaintiff's reputation; and
fair compensation for any lost wages or diminution in earning capacity, meaning
the loss of plaintiff’s capacity to work and earn a living that you find were
proximately caused by the defendant’s unlawful conduct. No evidence of the value
of tangible things, such as physical pain and suffering, needs to be introduced.
There’s no exact standard by which you can measure the money equivalent of such
an injury. The only measuring stick is the collective enlightened conscience of the
jury. The law leaves it up to the fairness and common sense of the jury to determine
the amount of these damages. In this difficult task of putting a money figure on an
aspect of injury that does not readily lend itself to an evaluation in terms of money,
you should try to be fair, objective, and dispassionate, and not be unduly swayed
by sympathy for the plaintiffs or for the defendant. Once you have calculated each
of these areas of damages, medical expenses, pain and suffering, mental and
emotional distress, reputational harm, lost wages or earning capacity and so on, you
should add them up to arrive at the total award. There must not be any overlapping
of the various elements constituting the damages. The total sum must be fair
compensation for the entire injury, no more and no less. In other words, if you
decide that a plaintiff is entitled to compensatory damages for more than one of his
claims, any damages awarded for one claim must not be duplicative of any damages
you award for the other claim. Damages should not be awarded more than once for
the same injury. Compensatory damages aim to make the plaintiff whole, and he
may not recover more than he has lost.
[Day 6 at 34:3–35:21]. Viliena primarily takes issue with the discrepancy between the
compensatory amounts awarded here ($1.75 million for Boniface, $1.25 million for Ysemè, and
$1.5 million for Martyr) and the amounts recovered in Haiti ($17,496 for Boniface, $14,315 for
Ysemè, and $15,905 for Martyr), as well as the fact that “damages represented many multiples of
their annual earnings.” [ECF No. 262 at 13]. He then states that otherwise “plaintiff provided no
evidence on damages.” [Id.].

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Viliena ignores that the jury heard ample evidence regarding, for example, Eclesiaste’s
killing which led to the separation of his family and continuing threats, [Day 2 at 23:5–14,
29:13–33:10]; Ysemè’s ongoing and consistent pain due to his injuries; and his inability to live
with his family due to ongoing fear for his safety, [id. at 62:4–25, 87:10–20]; and Nissage
Martyr’s amputated leg and the ongoing threats to his family, [id. at 64:25–65:3; Day 4 at 87:8–
88:6]. As the Court explained to the jury, “[n]o evidence of the value of tangible things, such as
physical pain and suffering, needs to be introduced. . . . The law leaves it up to the fairness and
common sense of the jury to determine the amount of these damages.” [Day 6 at 34:22–35:3].
The Court will not upend the jury’s collective decision here, even if it would have found a lesser
amount itself. See McDonald v. Fed. Laby’s, Inc., 724 F.2d 243, 247 (1st Cir. 1984) (where
Plaintiff “suffered, and will continue to suffer for an indeterminate time into the future,
considerable physical pain, humiliation, and the loss of meaningful business, social and home
life,” finding that “[p]lacing a value on human suffering is always a subjective enterprise, turning
on the jury’s sensibilities to the facts and circumstances presented in a particular case. Though
[the First Circuit], like the trial judge, may have awarded a lesser amount, [it] cannot say that the
jury so overstepped its bounds as to ‘shock the conscience’ of th[e] court.” (citing Mitchell v.
Evelyn C. Brown, Inc., 310 F.2d 420, 425 (1st Cir. 1962)).
Regarding punitive damages, as an initial matter, they have been awarded in TVPA cases.
See Ditullio v. Boehm, 662 F.3d 1091, 1102 (9th Cir. 2011) (“revers[ing] district court’s
determination that punitive damages are unavailable under the TVPA”); cf. Xuncax v. Gramajo,
886 F. Supp. 162, 199–200 (D. Mass. 1995) (although declining to find retroactive punitive
damages under the TVPA, noting that “it appears the statute was designed not simply to
compensate the victims of torture, but with an eye toward eradicating the evil altogether. In the

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civil context, of course, to prevent or deter heinous behavior is the particular province of punitive
or exemplary damages.”).
Here, the Court provided the following instruction to the jury, which Defendant has not
taken issue with:
In addition to awarding damages to compensate the plaintiff, you may, but are not
required to, award plaintiff punitive damages if you find that the acts of the
defendant were wanton, reckless, or malicious. . . . The purpose of punitive
damages is not to compensate the plaintiff but to punish the defendant and thereby
discourage the defendant and others from acting in a similar way in the future.
An act is malicious when it is done deliberately with knowledge of the plaintiffs’
rights and with the intent to interfere with those rights. An act is wanton and
reckless when it demonstrates conscious indifference and utter disregard of its
effect upon the health, safety and rights of others. If you find the defendant’s acts
were not wanton or reckless or malicious, you may not award punitive damages.
On the other hand, if you find that defendant’s acts were wanton and reckless or
malicious, you may award plaintiffs punitive damages. Punitive damages are
appropriate only for especially shocking and offensive misconduct.
In arriving at your decision as to the amount of punitive damages, you should
consider the nature of what the defendant did, including the character of the
wrongdoing, whether the conduct was done with an improper motive or with
vindictiveness, whether the act or acts constituted outrageous or oppressive
intentional misconduct, defendant’s awareness of the harm and potential harm
caused by the conduct, how often defendant engaged in similar conduct, and any
effort to conceal or cover up the wrongdoing.
There is no exact standard for fixing the amount of punitive damages. The amount
can be as large as you believe is necessary to fulfill the purpose of punitive
damages, but the amount of punitive damages that you award must be fair,
reasonable and proportionate to the actual and potential harm suffered by plaintiffs,
and to the compensatory damages you award to plaintiffs. Generally speaking, this
means that the ratio of punitive damages to compensatory damages must not exceed
a 9:1 ratio. The nature of defendant’s conduct, including how offensive you find
the conduct, is an important factor in deciding the amount of punitive damages.
[Day 6 at 35:22–37:11]; see also BMW of N.A., Inc. v. Gore, 517 U.S. 559, 574–75 (1996)
(explaining “[t]hree guideposts” that should be used to assess the fairness of punitive damages:
(1) the “degree of reprehensibility” of the conduct; (2) “the disparity between the harm or
potential harm” and the punitive award; and (3) “the difference between” the punitive damages
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amount “and the civil penalties authorized or imposed in comparable cases”). The jury heard
evidence that Viliena participated in and/or directed the organized killing and/or torture of the
Plaintiffs and/or their family members, see, e.g., [Day 2 at 55:25–56:12 (Viliena “busted
[Nissage’s] head with [his] gun.”), 56:22–57:9 (Viliena “beat[] [Ysemè] up[,] . . . hitting [him]
all over [his] face, [his] body” and said “I’m going to put a noose around your neck, and then I’m
going to hang you on the public plaza.”), 58:25–59:6 (Viliena told Duclona to shoot Ysemè);
Day 3 at 17:2–7 (Viliena “became mayor with his group of gangs, they started killing people, the
beat people up.”), 39:3–23 (Lebon testified that it was Viliena who shot Eclesiaste), 61:8–18
(Mers Ysemè testified that Viliena told Hautefort that “[a]s we don’t find Davis, let’s shoot
Eclesiaste like, in his place.”), 63:24–65:4 (Viliena ordered the shooting of Nissage Martyr); Day
4 at 64:11–13 (Viliena led the attack on the Radio Station)], persisted in threats to these
individuals when they pursued a remedy for that reprehensible conduct, see, e.g., [Day 2 at
29:13–31:22 (threats to David Boniface), 86:17–87:14 (threats to Ysemè); Day 4 at 87:8–88:6
s(threats to Nissandère Martyr)], and the jury’s punitive damages award was proportional to the
compensatory amounts they awarded, see, e.g., [Verdict]. Under these circumstances, the jury’s
award was not so “grossly excessive” as to warrant remitter of damages, and the Court declines
to do so. See BMW, 517 U.S. at 568.
IV.

CONCLUSION
Accordingly, Viliena’s motion, [ECF No. 261], is DENIED.
SO ORDERED.

April 8, 2024

/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE

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