Case 0:08-md-01916-KAM Document 2508 Entered on FLSD Docket 07/14/2019 Page 1 of 8

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 08-md-01916-KAM

IN RE: CHIQUITA BRANDS

INTERNATIONAL, INC. ALIEN
TORTS STATUTE AND
SHAREHOLDER DERIVATIVE
LITIGATION
__________________________________________/

This Order relates to:

ATS ACTIONS
__________________________________________/

08-80465-CIV-MARRA (D.C. Action) (Does 1-144)

10-80652-CIV-MARRA (D.C. Action) (Does 1-976)
11-80404-CIV-MARRA (D.C. Action) (Does 1-677)
11-80405-CIV-MARRA (D.C. Action) (Does 1-254)
17-80475-CIV-MARRA (O.H. Action) (Does 1-2146)
__________________________________________/

Wolf Plaintiffs' Supplemental Reseponse on Hearsay

Challenges to Plaintiffs' Causation Evidence

On July 1, 2019, the Court ordered the Plaintiffs to either show that the material on the
record on the issue of AUC responsibility for each death is admissible as presented, or explain the
admissible form that is anticipated at trial. DE 2499 at 3. The Court ordered undersigned counsel
to provide this information for two test cases, Doe 378 and Doe 840. Id.
A. Doe 378
The Defendant argues that there is no admissible evidence that the AUC was responsible
for the death of the decedent, because the plaintiff cannot prove that the killer was a member of
the AUC. DE 2283 at 16. Circumstantial evidence shows that, more likely than not, a member of
the AUC shot the plaintiff in the back while he was violating a curfew.
1. The testimony of Doe 378. Although the Plaintiff did not observe the murder, she can
testify about a conversation she had with the decdeent about his intention to violate AUC's curfew
to watch a soccer game on a projection TV in the center of town. She can also testify that the
decedent was hard of hearing, so that he may not have heard an instruction to stop. She may also
relay what she heard from her deceased mother from another unavailable witness, who saw the

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victim being shot in the back as he disobeyed an order to stop.1 Although the transcript of this
testimony is not in the summary judgment record, the court may still rely on the summary of the
facts in the report of expert witness Manuel Ortega.2
2. The testimony of Expert Witness Manuel Ortega.3 Expert Report filed as DE 2326;
Doe 378 case analyzed at 10-11. The victim was killed in 1997 as he returned from watching a
soccer game on a projection screen in a local park in Chigorodo, Colombia. Id. at 10. The victim
had worked on several banana plantations as an independent contractor, including Banafinca and
El Retiro, which was owned by Banadex, and one of the farms appearing in records delivered to
the Colombian fiscalía by paramilitary Raul Hasbun. Id. The AUC had imposed a curfew that
prohibited anyone from leaving their house at night. Id. The victim's family implored him not to
go and to respect the curfew, but the victim ignored the advice and went to watch the game anyway.
Id. When the victim was on his way home, as he passed a gas station, two men arrived, called him
by his name, and then shot him in the back when he ignored them. Id. The victim was almost deaf
and the plaintiff thinks that he may not have heard them. Id. The paramilitaries took the victim's
identification card ("cedula"). Id. The murder was witnessed by a woman who observed it from
the balcony of her home, and related the details to the Plaintiff's mother. Id. Other people were
killed during the same period of time for defying the curfew. Id. The plaintiff was recognized as a
war crimes victim by Accion Social, and received benefits. Id. Mr. Ortega also testified, and wrote
in his report, that this murder occurred in the context of a paramilitary campaign of murder and

1
This is a double hearsay problem involving two unavailable witnesses, one of whom is deceased, and the
other having moved away many years ago. Both statements were against the interests of the declarants,
who would have been safer had they kept quiet, rather than telling others that the first witness saw the
paramilitaries kill the decedent. Regardless, the Plaintiff may still testify about her conversation directly
with the decedent before he left to watch the soccer game.
2
Should the Court wish to read the transcript of the Plaintiff's testimony about this incident, it may order
counsel to file the transcript under seal. However, counsel does not want to file it without leave, since the
Court ordered us to cite only to the existing summary judgment record. The Defendant could have
challenged Mr. Ortega's summary of the events in his report, in its Reply to Defendant's Motion for
Summary Judgment, DE 2431 at 6, but did not. The Defendant also failed to address our arguments based
on Mr. Ortega's expert opinion about the scope of the AUC's control, modus operandi, and related issues,
and how they affect the Court's Summary Judgment rulings. The Court may take his opinions as admitted
facts, at this stage anyway, if Chiquita continues to ignore them.
3
Manuel Ortega worked as a Special Agent for the FBI from 1986 to 2012. He was the lead investigator in
the prosecution of this case, and spent about six years investigating Chiquita’s payments to the AUC. Mr.
Ortega can testify from personal knowledge about the AUC's motives and modus operandi, and relied on
published reports to determine the geographic and temporal scope of the AUC's campaign. His expert
report was filed at DE 2326. He was deposed on January 9, 2019, but we do not have a transcript of the
deposition and cite only to his report.

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torture aimed at civilians in one of the most violent regions of the conflict, Urabá, where the
Defendant's Colombian subsidiary Banadex was located. DE 2326 at 6. He testified that at the
time, the Colombian authorities were unable or unwilling to investigate the thousands of murders
occuring in Urabá. Id. The location of the murder, in an urban area in Apartado, was important
in determining responsibility, since the only armed group that operated in this area at that time was
the AUC. Id. at 15. Raul Hasbun led the paramilitary block in control of this town. Id. at 15. It
would be highly unlikely for groups of common criminals to operate in an area controlled by the
AUC. Id. Mr. Ortega also relied on massacre statistics published by the National Center for
Historical Memory, an agency of the Colombian government, which by themselves show that the
murder was more likely than not committed by the AUC. Id. at 17. The statistics show that, on a
national level, the paramiltiaries killed more than twice as many people as the guerrillas. Id.
However, when territorial control is considered, the vast majority of the crimes were committed
by the group in control of the territory. Id.
4. Death certificate of the victim. Filed as DE 2328 at 2 (WOLF000105),4 this document
alone, supported by expert testimony, should be sufficient for the Plaintiff to survive summary
judgment, since it shows the time, place, and cause of death ("Traumatic Shock Multiple Wounds
Firearm Projectiles"), as well as identifying the next of kin, who are also the Plaintiff's parents.
This is admissible as a business record,5 a public record,6 and as a record of a vital statistic. FRE
803(6), 803(8), 803(9), 901(7).

4
Citations are to the English translations of these documents. The originals in Spanish appear in the same
place in the previous docket entry, and the the versions bearing Bates numbers. For example, this death
certificate appears on page 2 of DE 2328 in English. The original in Spanish appears on page 2 of DE 227.
The translator re-created the layout of the documents, including notary stamps, and the pages are numbered
the same.
5
Rule 803(8)(a) allows for records of a public office, but not “in a criminal case, a matter observed by law-
enforcement personnel.” The Eleventh Circuit has explained that the business records exception to hearsay
in Rule 803(6) cannot be used as a “back door” to introduce evidence that would not be admissible under
Rule 803(8)(B). United States v. Brown, 9 F.3d 907, 911 (11th Cir. 1993). The instant case is not a criminal
case, so the exhibit’s admission is not precluded on that basis. The business record exception duplicates
the public records exception, and is only listed to avoid waiver.
6
In order for the document to fall within the hearsay exception of Rule 803(8) (a) or (b), the document must
be a report, record, statement, or data compilation setting forth: (1) the activities of a public office or agency;
or (2) matters observed pursuant to a duty imposed by law as to which matters there was a duty to report.
Id. Here, the letter is a statement setting forth the activities of the prosecutor's office in investigating the
murder, which the office had a duty to report. “Justification for the exception [in Fed.R.Evid. 803(8)] is the
assumption that a public official will perform his duty properly and the unlikelihood that he will remember
details independently of the record.” Fed.R.Evid. 803(8) advisory committee's notes.

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5. Letter from hospital about autopsy. Filed as DE 2328 at 3 (WOLF000106), this is

admissible as a business record, public record or statement. FRE 803(6), 803(8), 901(7).
6. Letter from prosecutor's office in Chigorodo. Filed as DE 2328 at 4 (WOLF000107).
FRE 803(6), 803(8), 901(7).7
7. Sworn witness statement ("extrajuicio"). Filed as DE 2328 at 5 (WOLF000111). The
statement of two witnesses, who appeared together, regarding the murder of the victim, and that
he was unmarried with no children, signed by three officials in the office of the Notario in
Apartado. This complies with a Colombian procedure for proving family relations, which requires
two neighbors or other unrelated witnesses who know the victim and can testify about his or her
family relations. The statement is admissible as former testimony if the individuals are unable to
appear in court in the United States, FRE 804 (1), and as a public record. FRE 803 (8), 901(7). If
the witnesses are available, it would be hearsay.
8. Letter from Prosecutor's office in Chigorodo. Filed as DE 2328 at 6 (WOLF000114).
See ¶¶ 5,6 supra. This letter pertains to the murder of another member of the plaintiff's family.
9. Letter from Accion Social. Filed as DE 2328 at 7-9 (WOLF000117-119), this letter may
be admitted and authenticated by Plaintiffs' Expert Witness Carlos Eusse, who worked for Accion
Social in Uraba and is familiar with the agency's internal workings and correspondence, even
though he did not write the letter himself. FRE 901(1). It is also admissible as a business record,
public record or statement, under FRE 803(6), 803(8) and FRE 901(7).
10. Letter from Unit for the Attention and Integral Reparation of Victims. Filed as DE
2328 at 10 (WOLF000120). FRE 803(6), 803(8) and FRE 901(7).
11. Another letter from Accion Social. Filed as DE 2328 at 11. (WOLF000121) See ¶ 9
supra.
12. Accion Social Form. Filed as DE 2328 at 12 (WOLF000122) See ¶ 9 supra.
B. Doe 840
The Defendant makes the same argument for this case, that Doe 840, who identified the
killer by name in her deposition, could not prove that he was a member of the AUC. DE 2283 at

7
In White v. City of Birmingham, No. 2:13cv00099-KOB, 2015 WL 1418891, at *6 (N.D. Ala. May 27,
2015), the court explained that incident reports offered in a civil excessive force case were hearsay but were
admissible under the public records exception in Rule 803(8)(a), because they were the official reporting
document for the police department for its investigation.

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15-16. Circumstantial evidence shows that, more likely than not, a group of AUC members,
including the known individual, committed this murder.
13. The testimony of Doe 840. Doe 840 recognized one of the men who abducted the victim,
and named him in her deposition. See Sealed Transcript Excerpts, DE 2274 at 45. She testified
that he is a known AUC commander and is in prison for another murder. Id. Although Doe 840
didn't witness the actual murder, the killers pointed a gun at Doe 840 through a window and ordered
her to open the door to her home. Id. She testified that five other members of her family were
killed by the paramilitaries, and two of her daughters were raped by the paramilitaries. Id. at 16.
This is consistent with Agent Ortega's expert testimony, that entire families were suspected of
siding with the guerrillas. Id. at 6. Agent Ortega's opinions were already set forth in more detail
in ¶ 2 supra. The Defendant continues to ignore Agent Ortega's expert testimony and report, which
should be treated as admitted as admitted fact. DE 2326. On August 24, 2018, Plaintiff Doe 840
died of natural causes. She had been deposed in Fort Lauderdale, FL on September 28, 2017. On
September 24, 2018, counsel filed a Motion for Substitution, which the Court denied, and re-
ordered Plaintiff to file with certified translations of the Colombian laws that were cited. DE 2124.
It was re-filed on March 15, 2019 as DE 2338. Nevertheless, the deposition of Doe 840 was
recorded by video, and is admissible as former testimony of an unavailable witness. Federal Rules
of Evidence ("FRE") 804(1).
14. The testimony of family members of Doe 840. In her deposition, Doe 840 said that about
five other family members witnessed the abduction. Any of these individuals could testify,
although they were not deposed and have not applied for visas. The eldest daughter Ludy Rivas
has filed motions to substitute herself for the deceased Plaintiff. Counsel has not inquired as to
which of the daughters were raped.
15. The testimony of Expert Witness Manuel Ortega. Expert Report filed as DE 2326; Doe
840 case analyzed at 13-14. His general observations about the AUC's activities in the Uraba
region, set forth in ¶3 supra, also apply to this case. DE 2326 at 15. Mr. Ortega also testified about
the distinctive modus operandi used by the AUC. Id. When tasked with an operation, they would
generally kidnap the target and kill them in another location, as occured in this case. Id.
Depending the message their commanders wanted to send, they would either cause the body to
disappear or leave it to be found. Id. In this case, the victim was abducted from his home in the
middle of the night by five masked, armed men, in front of his family, and shot two blocks away,

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with the body left at the place he was executed. Id. Mr. Ortega found it significant that Doe 840
recognized one of the men who abducted her son, and named him. Mr. Ortega also relied on
massacre statistics published by the National Center for Historical Memory, an agency of the
Colombian government, which by themselves show that the murder was more likely than not
committed by the AUC. Id. at 17.
16. The Decedent's Death Certificate. (WOLF000310) Filed as DE 2330 at 2, is admissible
as a business record, a public record and as a vital statistic. FRE 803(6), 803(8), 803(9), 901(7).
See ¶ 4 supra. This document states that the probable manner of death was "violent."
17. Letters from Accion Social. Filed as DE 2330 at 3-4 (WOLF000314, WOLF000315) See
¶ 9 supra.
18. Letter from the prosecutor's office in Turbo. Filed as DE 2330 at 5. (WOLF000317)
Doe 840 had numerous members of her family killed by the AUC; this letter is about the murder
of the victim's father. It is admissible as a business record, public record or statement, 803(6),
FRE 803(8), 901(7), or as an ancient document, since it is dated August 9, 1996. FRE 803 (16),
901(8). The document bears the original stamp of the prosecutor's office, as well as the stamp of
a notary who authenticated this copy of it on November 11, 2011.
19. A letter from the Commission of Justice and Peace. Filed as DE 2330 at 6-7.
(WOLF000318-319) This letter also pertains to the murder of the victim's father. It is admissible
as a business record, public record or investigative report, FRE 803(6), 803(8), 901(7). It is is a
statement setting forth the activities of the Commission of Justice and Peace in investigating the
murder, which the office had a duty to report.
20. Decedent's Birth Certificate. Filed as DE 2330 at 8. (WOLF000325) is admissible for
the same reasons given for Death Certificates. See ¶4 supra. This document proves that the victim
has the same parents as his siblings, who are the plaintiffs and next of kin.
21. Birth Certificate of Substitute Plaintiff. Filed as DE 2330 at 9. It is admissible for the
same reasons given supra. This document proves that the Substitute Plaintiff has the same parents
as the victim, both of whom are now deceased.
22. Plaintiff's Death Certificate. Filed as DE 2330 at 10. It is admissible for the same reasons
given supra.

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23. Victim's Father's Birth Certificate. Filed as DE 2330 at 11. It is admissible for the same
reasons given supra. It proves that both of the victims' parents are now dead, leaving no doubt the
Substitute Plaintiff and other siblings are the next of kin.
C. Authentication of Documents
The Hague Convention Abolishing the Requirement of Legalisation for Foreign Public
Documents, 527 UNTS 189 (1981) (hereinafter "Apostille Convention") provides a simple method
that is often used by governments to authenticate their own documents for use in foreign
proceedings. Unfortunately, in preparing this Response, counsel learned that the Colombian
Ministry of Exterior Relations will only issue Apostilles for documents approximately three
months old or less.8 Federal Rule of Evidence 902(3) also permits a U.S. consular official to
authenticate the documents, but if the Colombian government cannot verify the identities of the
persons signing the documents, it seems unlikely a U.S. government official could. While it might
be possible for us to locate some of these individuals, it would not be reasonable to expect them to
travel to the United States to authenticate documents.
"If all parties have been given a reasonable opportunity to investigate a document’s
authenticity and accuracy, the court may, for good cause, order that it be treated as presumptively
authentic without final certification." FRE 902(3)(A). Good cause exists because the Colombian
Ministry of Exterior Relations does not provide final certifications for documents more than about
three months old. The Defendant has had these documents for over a year, which was an ample
opportunity to investigate their authenticity.
Conclusion
The documents relied on by the Plaintiffs are public records of Colombian government,
falling under the hearsay exception of Rule 803(8) and others. Although the Plaintiffs cannot
prove it with sworn testimony at this time, we understand that the Apostille procedure is
unavailable since the documents are more than three months old. This, and the fact that Chiquita
has had over a year to investigate the authenticity of the documents, are good cause to treat the
records as presumptively authentic.

8
Over the past two weeks, we tried to obtain Apostille stamps for several documents already in the summary
judgment record, without success. This is apparently due to practical difficulties in verifying the identities
of the many officials who sign such documents. While it may be possible to obtain new copies of these
records from the agencies, including birth and death certificates in particular, we believe they would simply
provide photocopies of the originals, which bear the original dates. Id. We have not found any written
authority underlying this policy.

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Respectfully submitted,

/s/ Paul Wolf

________________________
Paul Wolf, D.C. Bar #480285
Attorney for Plaintiffs
PO Box 21840
Washington, D.C. 20009
(202) 431-6986
paulwolf@yahoo.com

July 14, 2019

Certificate of Service

I hereby certify that on this 14th day of July, 2019, I filed the foregoing document with the
Clerk of the Court using the Court's Electronic Case Filing (ECF) system, which will send
electronic notices to all persons entitled to receive them.

/s/ Paul Wolf

______________
Paul Wolf