Chiquita Supplement Re Hearsay Exceptions in Summary Judgment

Case 0:08-md-01916-KAM Document 2516 Entered on FLSD Docket 07/22/2019 Page 1 of 25
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 08-MD-01916-MARRA
IN RE: CHIQUITA BRANDS INTERNATIONAL, INC.

ALIEN TORT STATUTE AND SHAREHOLDER
DERIVATIVE LITIGATION
______________________________________________/
This Document Relates to:

______________________________________________/
ATS ACTIONS
______________________________________________/
07-60821-CIV-MARRA (Carrizosa)
08-80421-CIV-MARRA (N.J. Action) (Does 1-11)
08-80465-CIV-MARRA (D.C. Action) (Does 1-144)
08-80508-CIV-MARRA (Valencia)
08-80480-CIV-MARRA (N.Y. Action) (Manjarres)
10-60573-CIV-MARRA (Montes)
17-81285-CIV-MARRA (D.C. Action) (Does v. Hills)
18-80248-CIV-MARRA (John Doe 1)
______________________________________________/
DEFENDANTS’ CONSOLIDATED RESPONSE TO

PLAINTIFFS’ SUPPEMENTAL BRIEF AND WOLF PLAINTIFFS’
SUPPLEMENTAL RESPONSE ON HEARSAY CHALLENGES
The Court ordered Plaintiffs to cite the “specific material(s) presented” by specific location in
the existing record of any admissible, competent evidence that an AUC operative killed Plaintiffs’
decedents and to explain how they believed the evidence was admissible in its current form or could
be reduced to admissible form at trial. (DE 2499, pp. 2-3). Plaintiffs’ respective supplemental briefs
fail to follow these commands. Plaintiffs not represented by Paul Wolf instead improperly attempt to
augment the evidentiary record to manufacture such evidence and the Wolf Plaintiffs continue to rely
on the same hearsay without demonstrating that any exception applies. Summary judgment should be
granted against Plaintiffs. They have not pointed to any evidence of record naming any AUC operative
as the killer of Plaintiff’s decedent because the record is devoid of any such evidence.
THE NON-WOLF PLAINTIFFS
I. Plaintiffs’ “common evidence” is not admissible but even if so, it does not establish
that the unidentified perpetrator who killed a decedent was an AUC operative. 1
Plaintiffs improperly include generalized arguments about “common evidence”—without
citation to which bellwether Plaintiffs this common evidence allegedly relates—regarding their
proffered excerpts of Raul Hasbún’s indictment, Hasbún’s unspecified “confessions,” excerpts of
José Mangones’ sentencia, Fredy Rendón’s first instance judgment, Mangones’ and Rendón’s
unspecified underlying confessions, other “reports, documents and confessions,” the Justice and
Peace documents, and circumstantial modus operandi evidence. This directly violates the Court’s order.
A. The Sánchez Declaration is not properly before the Court and should be
disregarded. The Justice and Peace documents upon which Plaintiffs rely
remain inadmissible hearsay to which no exception applies.
The non-Wolf Plaintiffs responded to the Court’s Order by improperly trying to augment the
summary judgment record with the Expert Declaration of Nelson Camilo Sánchez León (DE 2510-
1) (“Sánchez Declaration”). Indeed, Mr. Sánchez himself admits the purpose of his declaration is “to
provide evidence for this case.” (Sánchez Decl., ¶ 1). These Plaintiffs then rely extensively on the
declaration as a supposed means of fitting the various Justice and Peace documents into a hearsay
exception (Plaintiffs’ Supplemental Brief Pursuant to DE 2499 (filed as DE 2510) (“Supplemental
Brief”), pp. 1-4, 6). Plaintiffs improperly attempt to meet hearsay exceptions by citing to a hearsay
source outside the record for which they do not cite any hearsay exception. (Id., p. 1 & n.2).
The Sánchez Declaration was not filed of record until July 15, 2019, four months after the
March 15, 2019 deadline for Plaintiffs’ opposition to Defendants’ two summary judgment motions
1
For the Court’s convenience, this Response tracks the section and paragraph numbers in Plaintiffs’
Supplemental Brief (DE 2510), except for one new, italicized heading below.
1
and almost two months after completion of summary judgment briefing upon the filing of
Defendants’ replies. (DE 2122, ¶ III; DE 2356). The Court should disregard the Sánchez Declaration
because it was not in the existing summary judgment record. Burgest v. United States, 316 F. App’x 955,
957 (11th Cir. 2009); Butchkosky v. Enstrom Helicopter Corp., 855 F. Supp. 1251, 1257 (S.D. Fla. 1993).
E ven if the Court considers the Sánchez Declaration, it is not evidence that the
unidentified killer of any Plaintiffs’ decedent was an AUC operative.
Even were the Court to entertain the declaration, its contents lack any probative value on the
issue of who killed the bellwether Plaintiffs’ decedents. Although purporting to be based upon Mr.
Sánchez’s personal knowledge (Sánchez Decl., ¶ 1), the declaration contains multiple instances of
hearsay not subject to any exception. Asked to demonstrate why their existing proffered evidence is
not hearsay or is subject to a hearsay exception, Plaintiffs respond with more hearsay.
For example, Mr. Sánchez comments without citation upon the main group who demobilized
as well as what resources were required to set up the Justice and Peace program. (Id., ¶ 7). He also
gives his understanding without citation of the two complementary processes that underlie the Justice
and Peace program. (Id., ¶ 8). He further comments how Free Versions “are seen” in the
demobilization process. (Id., ¶ 13). As another example, the declaration comments upon a “well-
known case” involving two paramilitary leaders who were purportedly denied Justice and Peace
benefits because they “lied about their involvement in” an attack on a journalist. (Id., ¶ 20) (left unsaid
is how they lied). Also, the declaration mentions the Inter-American Commission on Human Rights’
characterization on the Colombian Government’s obligations under Colombian law. (Id., ¶ 23). None
of these comments or characterizations are based upon personal knowledge and the declaration does
not purport to explain how they could be. The declaration is rank hearsay.
The declaration also relies upon multiple external sources not appended to the declaration. 2
Again, directed to point to evidence in the summary judgment record, Plaintiffs instead respond with
a new expert who relies upon sources outside the record. At best, the declaration sets forth what should
happen in the Justice and Peace process, not what actually happened in any bellwether Plaintiff’s case.
Similarly, Mr. Sánchez says that any paramilitary in the Justice and Peace process must “confess to all
criminal acts in which they participated . . . .” (Id., ¶ 13). But Plaintiffs have not pointed to any evidence
of record that any AUC operative has confessed to killing any bellwether Plaintiff’s decedent. Nor
have Plaintiffs pointed to any evidence of record that any AUC commander has identified the killer
2
See, e.g., id., ¶ 7 (Decree 3391 of 2006), ¶ 10 (Decreto 4760 of 2005), ¶ 12 (Law 600 of 2000 & Law
793 of 2002), ¶ 18 (Law 975 of 2005).
2
of any bellwether Plaintiffs’ decedent. Instead, Plaintiffs continue to rely upon their top-down,
command responsibility theory discussed more fully below.
Additionally, Mr. Sánchez says in the declaration that the prosecutor must investigate the
“sources of funding and property of the armed group” “before an individual has begun to give
testimony through the Free Versions.” (Id., ¶ 26). Plaintiffs have not cited to anywhere in the record
containing any such investigation of the sources of the funding of any bloc of the AUC (or of the
AUC itself). Further, according to Mr. Sánchez, the Colombian State “has a duty to guarantee victims’
access to Justice and Peace archives in order for them to be able to exercise their rights.” (Id., ¶ 28).
Yet Plaintiffs have failed to identify a single document in the record in which any AUC operative
admitted killing any Plaintiff’s decedent, although all of the bellwether Plaintiffs have registered as
victims. Thus, even assuming arguendo that the Sánchez Declaration is properly before the Court and
that its discussion of the contours of the Justice and Peace program is accurate, Plaintiffs have failed
to identify anywhere in the record (because they failed to put it into the record) any document from
that program that names the killer of any Plaintiff’s decedent and shows that he was an AUC operative.
1. The excerpted Hasbún indictment (DE 2346-78) and letter to John Doe
7 (DE 2348-129) are prohibited as substantive evidence and do not
satisfy the FRE 803(6) or 803(8) exceptions. Even if they do, Plaintiffs
do not establish that an AUC operative killed any Plaintiff’s decedent.
The excerpt of the Hasbún indictment is inadmissible as substantive evidence. “[I]t is
hornbook law that indictments cannot be considered as evidence.” United States v. Cox, 536 F.2d 65,
72 (5th Cir. 1976). “An indictment is only an accusation . . . It is not evidence that the offense charged
was committed and may not be considered as evidence by the jury during their deliberations.” United
States v. Glaziou, 402 F.2d 8, 15 (2d Cir. 1968). “[A]n indictment is not evidence of the charges
contained in it, any more than a complaint is” and cannot be considered to overcome summary
judgment. Scholes v. Lehmann, 56 F.3d 750, 762 (7th Cir. 1995).
Seeking to avoid this dispositive precedent, Plaintiffs have proffered the Sánchez Declaration,
which should not be considered as detailed above. But even if the Court were to consider it, Plaintiffs’
summary of Mr. Sánchez’s conclusion that the Colombian prosecutor must “fully investigate the
crimes and verify the confessions are true before requesting an indictment” (Supplemental Brief, p. 1)
is belied by the record. Plaintiffs fail to point to any place in the record detailing such investigation.
Moreover, the Record 138 indictment itself is entitled: “Preliminary hearing for filing for partial and
additional indictment and imposition of measure to ensure appearance at trial.” (DE 2346-78 at 2).
That it is a “preliminary” hearing for a “partial” and “additional indictment” and imposes measures
3
“to ensure appearance at trial” demonstrate that there has not been any final determination of the
veracity of the charges or conviction of a crime. If there had been, there would be no need for a trial.
Indeed, Hasbún’s testimony demonstrates that he merely “appear[ed]” at the proceeding: “Q: And is
[Record 138, DE 2346-78] a true and correct copy of the documents that you remember signing? A:
We were not given the entire document. We simply sign the record concerning the appearance at the
procedure.” (DE 2346-9, Hasbún Dep., 40:18-23). Plaintiffs also misstate the import of Appendix 2
to the Hasbún indictment as “a list of crimes Hasbun confessed to.” (Supplemental Brief, p. 1). But
the indictment itself states that Annex 2 is a “chart proffered, which will become an integral part of
this indictment and the future Proceedings.” (DE 2346-78 at 4, NJDOEI24906). Even Mr. Sánchez
refers to the Hasbun indictment as an “Audience of Formulation of Charges.” (Sánchez Decl., ¶ 32).
Even if not prohibited as substantive evidence, the indictment does not satisfy either FRE
803(6) or FRE 803(8). FRE 803(6)(D) is not met because the record does not contain any testimony
by a custodian of the indictment nor anything to show that the indictment is “signed in a manner that,
if falsely made, would subject the maker to criminal liability in [Colombia]” as required by FRE
902(12). Plaintiffs merely state that they will present “certified and notarized copies of these
documents” (Supplemental Brief, p. 2), conceding that they do not exist in the record. FRE
803(8)(A)(iii) is also not met because the indictment does not set forth any factual findings.
Government records that do not set forth factual findings are inadmissible under FRE 803(8). Williams
v. Asplundh Tree Expert Co., 2006 U.S. Dist. LEXIS 73238, at *10 (M.D. Fla. Oct. 6, 2006).
As to the November 6, 2007 letter to John Doe 7, 3 it simply states that the “report” submitted
by John Doe 7 “has been assigned to this Prosecution Office . . .” (id., p. 17) and notifies him of the
“day and time when the matter reported by you will be dealt with . . . . (Id., p. 18). Moreover, the
public record exception applies only when the record or document is “based upon the knowledge or
observations of the preparer of the report.” Mamani v. Berzain, 309 F. Supp. 3d 1274, 1297 (S.D. Fla.
2018). The exception is not satisfied because there is no indication that the events described in the
record were based on the personal observations of the preparer of the record. Id. Finally, even if
3
Defendants believe that this is the “subsequent letter to John Doe from the Colombian government
(DE 2348-129)” that Plaintiffs cite (Supplemental Brief, p. 1). Because documents filed under seal do
not contain a header with the docket entry number at the top of each page and Plaintiffs never filed a
redacted version of DE 2348 on the Court’s docket, Defendants cannot definitively determine
whether this letter is DE 2348-129 but believe that Plaintiffs are citing this letter which was at pages
17-18 of Exhibit 235 of their Response Statement of Material Facts (DE 2346).
4
admitted and considered, neither the Hasbún indictment nor the letter to John Doe 7 identify the
killer of any bellwether Plaintiff’s decedent nor establish that such killer was an operative of the AUC.
2. Hasbún has never “confessed” to killing any Plaintiff’s decedent and
FRE 804(b)(1) does not render admissible any “facts” in the Hasbún
indictment to which Hasbún has allegedly “confessed.”
Nowhere in his deposition did Hasbún testify that he ordered any bellwether Plaintiff’s
decedent to be killed or that the AUC killed any Plaintiff’s decedent. Nor have Plaintiffs pointed to
any evidence of record that “a person with personal involvement accepted responsibility for” the
murder of any Plaintiff’s decedent. (DE 2471 at 5 n.7). No such evidence is anywhere in the record.
Plaintiffs’ entire argument on this point, like their entire theory of the case, presupposes what they
have the burden to prove – that an AUC operative killed their decedents. Their case on causation is
based on a tautology, not evidence.
Plaintiffs’ alleged “proof” is nothing more than command responsibility: “at the commander
level, this process involved a general acceptance of responsibility for acts of subordinate combatants
. . . not necessarily based on direct participation or even knowledge of the underlying crime[].” (Id.)
Plaintiffs have pointed to nothing in the record—because the record does not contain anything—
regarding a “deposition” or “declar[ation]” by any operative of the AUC that he was “there at the
time” any Plaintiff’s decedent was killed or that he killed such decedent. (DE 2346-3, Mancusco Dep.,
109:15-19, 109:24-110:3). The record is devoid of any such evidence.
Indeed, unlike the disincentive under American law to admit to multiple killings because of
the threat of increased punishment including longer prison sentences, the Justice and Peace program
incentivizes AUC commanders to “accept responsibility” for deaths for which there is no underlying
evidence that an AUC operative killed the decedent. This is because the “alternative sentencing”
provision of the program permits a maximum sentence of 5-8 years regardless of the number of
killings for which the AUC commander takes responsibility. 4 Because “the loss of alternative
sentencing could subject them to decades of imprisonment instead of the 5 to 8 year term” (Sánchez
Declaration, ¶ 18), former AUC commanders had every incentive to accept command responsibility
for every death in their geographical region, despite whether they had personal knowledge of it and
whether or not a subordinate had confessed to the killing. Indeed, the excerpt of the Hasbún
indictment ends with victim no. 850 (DE 2346-78 at 11), indicating that he “accepted responsibility”
4
See Sánchez Decl., at 17 & 23 (Law 975 of 2005, Art. 5, Art. 29). See also id., ¶ 10).
5
for at least 850 deaths. Further, Hasbún previously testified that he took “command responsibility”
in the Justice and Peace program for “more or less 11,000 deaths”). (DE 2346-100, 175:4-13).
3. The excerpted Fredy Rendón “First Instance Judgment” (DE 2346-93)
and the excerpted Jose Mangones S entencia (DE 2346-72) are hearsay
not subject to FRE 803(22) but, even if admissible, they do not establish
that an operative of the AUC killed any Plaintiff’s decedent.
As with the Hasbún indictment, Plaintiffs proffered the Sánchez Declaration to attempt to
wedge the excerpts of the Fredy Rendón “First Instance Judgment” (DE 2346-93) and the Jose
Mangones Sentencia (DE 2346-72) into a hearsay exception for a judgment of a previous conviction.
The declaration should not be considered for the reasons previously detailed. But even if the Court
accepts the Sánchez Declaration and considers the admissibility of the excerpted Rendón judgment,
under FRE 803(22), only a “final judgment of conviction” is excepted from the hearsay bar. The
excerpt of the Rendón judgment itself states that it is a “First Instance” judgment and nothing in the
record proves that it is a “final” judgment of conviction. (DE 2346-93, p. 1).
Even if the Court accepts the Sánchez Declaration and considers the admissibility of the
excerpted José Mangones Sentencia (DE 2346-72), the excerpt does not include the ruling or any
“factual findings” of the court as required by FRE 803(22) but instead states only the “criminal acts
of which they [including Mangones] are accused and charges filed.” (DE 2346-72 at 4 of 6).
Moreover, Plaintiffs cannot satisfy FRE 803(22)(C) with respect to either the First Instance
Judgment or the Sentencia because they are attempting to admit the evidence herein to prove that an
operative of the AUC killed a Plaintiff’s decedent, which, given command responsibility, is not a “fact
essential to the judgment.” To the contrary, Plaintiffs again incorrectly assume the fact that they must
prove. They argue tautologically that a finding that Rendón “committed the underlying murders he
was sentenced for” was a “fact essential to the judgment.” (Supplemental Brief, p. 4). But this bold
tautology is not what the evidence shows. Nothing in the First Instance Judgment states that Rendón
committed the murder; to the contrary, it states (without attribution) that the Elmer Cardenas Block
(which was under the command Rendón) was responsible for the killing. (DE 2346-10, p. 3 of 10).
Likewise, the Mangones judgment is also based upon criminal acts committed while Mangones was
commander of the William Rivas Front. (DE 2346-72, p. 4 of 6). The Rendón judgment does not
identify any killer, instead using generalized “them” and “they” without attribution to describe the
killers of Jose Lopez 339. (See DE 2346-93, p. 2 of 10). Similarly, the Mangones Sentencia does not
identify any killers, instead referring to “a couple of individuals” and “the individual” who shot a
Plaintiff’s decedent without stating any name. (DE 2346-72, p. 6 of 6). Even if admitted, neither
6
judgment proves that an operative of the AUC killed any Plaintiff’s decedent. As previously discussed,
“command responsibility” is simply insufficient to prove that an the unknown killer of any Plaintiffs’
decedent was an AUC operative.
4. The “reports, documents and confessions” are not admissible under
FRE 807.
Contrary to the Court’s order (DE 2499), Plaintiffs fail to specify what “reports, documents
and confessions” they mean, that is, what “source evidence” they are discussing. Further, despite its
heading, this section discusses only “confessions” without specifying whose confession or where any
such confession is in the record.
Even assuming the Court chooses to consider this argument, “Congress intended
the residual hearsay exception to be used very rarely, and only in exceptional circumstances” and it
“appl[ies] only when certain exceptional guarantees of trustworthiness exist and when high degrees of
probativeness and necessity are present[.]” United Technologies Corp. v. Mazer, 556 F.3d 1260, 1279 (11th
Cir. 2009) (internal quotations marks and citations omitted). As discussed previously, whatever
“confessions” Plaintiffs mean are not highly probative on the issue of whether an AUC operative
killed any Plaintiff’s decedent because there is no document in the record that identifies who killed
any Plaintiff’s decedent or that such killer was an AUC operative. Nor are there any “exceptional
guarantees of trustworthiness” because, as discussed, there were sentence-reduction incentives for
AUC commanders participating in the Justice and Peace process to accept responsibility for all deaths
in their regions regardless of the existence of any underlying evidence of AUC operative involvement.
Plaintiffs chose not to address the admissibility and competence of other letters they submitted
from the Justice and Peace process—including DE 2346-60, DE 2346-73, DE 2346-74, and DE 2346-
75—and, therefore, pursuant to the Court’s order have waived any opposition and conceded their
inadmissibility. 5
5. Plaintiffs’ authentication argument is unavailing.
The Court should disregard this argument because Plaintiffs again have failed to “provide a
citation to a specific location in the record where the source evidence on a specific point is found” as
required by the Court’s order. (DE 2499, p. 4). Instead, Plaintiffs just refer to the “Justice and Peace”
documents generally without specifying the documents or where they are in the record.
Plaintiffs fail to explain how any Justice and Peace documents have been authenticated at the
summary judgment stage. “‘To be admissible in support of or in opposition to a motion for summary
5
DE 2499 at 1-2 (quoting Abbot v. Elwood Staffing Svcs., Inc., 44 F. Supp. 3d 1125 (N.D. Ala. 2014)).
7
judgment, a document must be authenticated by and attached to an affidavit that meets the
requirements of [Rule 56(c)] . . .’” Blane v. Hillstone Rest. Group, Inc., 2015 U.S. Dist. LEXIS 188500, at
*3 (S.D. Fla. Dec. 14, 2015) (Marra, J.) (quoting Saunders v. Emory Healthcare, 360 F. App’x 110, 113
(11th Cir. 2010)). The affiant must be the person through whom the exhibits could be admitted into
evidence at trial. Williams v. Eckerd Family Youth Alternative, 908 F. Supp. 908, 911 (M.D. Fla. 1995); cf.
Article II Gun Shop, Inc. v. Gonzales, 441 F.3d 492 (7th Cir. 2006). Even public records must be certified
as correct. Nat’l Default Servicing Corp. v. IRS, 2015 U.S. Dist. LEXIS 46546, at *5 (D. Nev. Apr. 8,
2015). Plaintiffs did not attach any Justice and Peace documents to a sworn affidavit of a person
named in the summary judgment record who could authenticate the documents at trial. Plaintiffs also
failed to provide in the summary judgment record a certification that the records are correct. To the
contrary, many Justice and Peace documents (e.g., the Hasbún indictment, Rendón First Instance
Judgment, Mangones Sentencia) in the summary judgment record under review are merely excerpts that
lack any signature or other evidence of authenticity and, therefore, do not comport with the FRE
902(3) exception for foreign public documents. 6 Accordingly, the Court should disregard the Justice
and Peace documents in ruling on summary judgment. Despite the Court’s order, Plaintiffs do not
identify a witness anywhere in the record who could identify and authenticate the documents at trial.
(DE 2499, p. 3). Instead, they vaguely refer to unidentified U.S. or Colombian officials who may be
able to authenticate unspecified documents at some point in the future.
B. No admissible circumstantial evidence in the summary judgment record
supports that the unidentified and unknown perpetrator(s) who killed any
Plaintiffs’ decedent was an AUC operative.
The Court should disregard this fallback argument because Plaintiffs have failed to link the
allegedly admissible circumstantial evidence to specific Plaintiff’s decedents as required by the Court’s
order (DE 2499). Moreover, as Defendants previously explained in their summary judgment papers:
“Given the lack of any personal knowledge or other admissible evidence establishing the identity of
any decedent’s killer [i.e. direct evidence], Plaintiffs fall back on the purely speculative and false
syllogism that underpins their claims: ‘the AUC was responsible for the majority of violence in Urabá
and Magdalena between 1995 and 2007’ so, therefore, [an operative of] the AUC killed all of Plaintiffs’
decedents.” (DE 2425, p. 8.) If this syllogism were true, then the AUC would be responsible for every
death in those regions during that period. Nothing in the record supports that.
6
The Court should reject Plaintiffs’ attempt to augment the summary judgment record via a link to
allegedly full versions (in Spanish) of documents on the internet.
8
Further, Plaintiffs backtrack from their prior modus operandi argument by now arguing, for the
first time, that “[m]uch of this [circumstantial] evidence . . . is not modus operandi evidence at all . . .
but admissible under Rule 406 . . . .” (Supplemental Brief, p. 6). But Plaintiffs do not even address the
standards under Rule 406 and instead simply proclaim that evidence of the purported modus operandi
of the AUC as an organization is admissible as habit. (Id. at p. 6.) As the Eleventh Circuit has held,
Rule 406 is a very narrow exception. Habit evidence must be carefully scrutinized before admission.
United States v. Copeland, 662 F. App’x 750, 757 (11th Cir. 2016). Evidence of “habit” is admissible only
if it “reflect[s] a systematic response to specific situations . . . .” Goldsmith v. Bagby Elevator Co., 513 F.3d
1261, 1285 (11th Cir. 2008). To establish a foundation for admission of habit evidence, the proffered
evidence “must be numerous enough to base an inference of systematic conduct and to establish one’s
regular response to a repeated specific situation before [the evidence] is admissible to establish a
pattern or habit.” Jablonski v. St. Paul Fire & Marine Ins. Co., 2009 U.S. Dist. LEXIS 65247, at *17 (M.D.
Fla. July 24, 2009) (internal quotations and citations omitted). To constitute habit evidence admissible
under Rule 406, the “habit” must “have a reflexive, almost instinctive quality” that responds to a
stimulus. Weil v. Seltzer, 873 F.2d 1453, 1460 (D.C. Cir. 1989).
Plaintiffs do not and cannot meet any of these foundational requirements of Rule 406. They
point to no such evidence in the summary judgment record regarding the AUC’s systematic response
or invariable method of killing. Instead, they simply proclaim that their circumstantial evidence is habit
evidence. But Plaintiffs themselves list seven separate means by which the AUC allegedly killed, which
belies any habit: stopping buses and killing, taking people from homes and killing, killing by brutal
and gruesome methods, killing while hooded or masked, and kidnapping as a means of terror (often
on motorcycle). (Supplemental Brief, pp. 7-8). In other words, Plaintiffs do not allege a specific habit
or routine but many different responses to specific situations. All of these methods are common to
many deaths that “occurred inside Colombia as part of Colombia’s civil war.” (DE 412, p. 87).
Plaintiffs’ alleged circumstantial evidence is thus inadmissible under Rule 406.
To the extent that Plaintiffs are still relying on a modus operandi argument—instead of relying
now on habit evidence—Defendants demonstrated conclusively in the summary judgment papers that
modus operandi is unavailing. (DE 2425, pp. 8-12). Indeed, the purported details of the decedents’ deaths
(which are all based on hearsay) belies the notion that a sufficiently unique modus operandi can identify
the killers as operatives of the AUC under Rule 404(b). For example, according to Ana Torres’ hearsay
account of her husband’s death, he was “seated and he was like cooling off his feet” at home when
9
two men shot him in the head. (DE 2348-136 at 34.)7 According to Pastora Durango’s hearsay account
of her son’s death, he was shot and killed in a bar for “dancing with some girls.” (DE 2348-46, p. 60.) 8
There is no evidence that either decedent’s name was on an “AUC list,” were shot at a bus roadblock,
were kidnapped from their home at night by men on motorcycles, were killed by men wearing masks,
or were even members of a labor union. (DE 2348-136, 30-34; DE 2348-46. 59-61). The deaths of
Ana Torres’ and Pastora Durango’s relatives (as with the deaths of other decedents) do not conform
with the AUC’s supposed modus operandi. Plaintiffs–via Kaplan–simply string together generic criminal
traits present in the accounts of some of the decedents’ deaths and call it modus operandi or habit. But
these criminal traits do not “bear such peculiar, unique, or bizarre similarities as to mark them as the
handiwork of” of operatives of the AUC as required under Rule 404(b). United States v. Myers, 550 F.2d
1036, 1045-46 (5th Cir. 1977).
Plaintiffs’ contention that a geographic and temporal link is enough to establish the unknown
killers identified as operatives of the AUC is wrong. Plaintiffs’ geographic and temporal AUC-link
rests exclusively on Kaplan’s expert report, which is not based on his personal knowledge but instead
on inadmissible hearsay. Yet even Kaplan concedes that “[a]lthough the AUC was not responsible
for all violence in Colombia or in the Urabá or Magdalena regions, they were responsible for a
majority of it.” (DE 2348-4 at 20.) (emphasis added.) Even if this were true, the AUC’s responsibility
for a “majority” of violence is not tantamount to “peculiar, unique, or bizarre similarities” sufficient
to identify decedents killers under Rule 404(b). Myers, 550 F.2d at 1045-46.
Plaintiffs’ modus operandi evidence is pure speculation and inadmissible to prove that the
decedents unknown killer(s) were operatives of the AUC. Such speculation cannot create a genuine
issue of material fact to overcome summary judgment. Thompson v. McDonald, 2019 U.S. Dist. LEXIS
50566, *3 (S.D. Fla. Mar. 25, 2019) (Marra, J.).
II. The Plaintiff-specific evidence is not admissible and does not establish that an AUC
operative killed any Plaintiff’s decedent.
1. Decedent Ceferino Restrepo/Plaintif Ana Ofelia Torres Torres (M ontes Action) 9
7
Ana Torres admitted she did not see her husband get shot or the men who shot him. (DE 2348-136,
30:20-25.
8
Pastora Durango was told about how her son was shot. When asked who killed her son, she replied:
“Well, who knows who it was.” (DE 4348-46, 61:1-2).
9
Plaintiffs fail to address, and therefore concede, the untimeliness of the disclosures of witnesses
, Rigoberto de Jesús Jimenez Sariego, Alvaro Villarraga Sarmiento, and Gerardo Vega
Medina. (See De 2423, pp. 9-10). The Court should therefore not consider the declarations of these
late-disclosed witnesses in passing on summary judgment.
10
Deposition of Ana Ofelia Torres: Ms. Torres testified at her deposition (DE 2346-87) that
she did not witness the death of her common-law husband and admitted that she has no personal
knowledge of whether an operative of the AUC killed her husband. (Id. at 35:2-5, 41:22-42:1.) The
purported modus operandi evidence cited by Plaintiffs (Supplemental Brief, pp. 8-9) is inadmissible and
cannot be reduced to admissible form at trial for the reasons discussed above.
Declaration of Ms. Torres’s son (DE 2346-105): Plaintiffs concede the hearsay statement
of the declarant’s sister is inadmissible. Nothing else in the declaration supports Plaintiffs’ assertion
that an AUC operative killed Ms. Torres’s decedent.
Hasbún indictment (DE 2346-78): This document is inadmissible as discussed above.
2. Decedent Miguel Angel Cardona/Plaintiff Gloria Muñoz (M ontes Action)
Deposition of Gloria Muñoz (DE 2346-36): Hearsay statements from Onelsi Meija to Ms.
Muñoz are inadmissible. Plaintiffs identify a single potentially applicable hearsay exception to Onelsi’s
statements but fail to explain or analyze how her statements qualify as an excited utterance. The excited
utterance hearsay exception has three requirements: a startling event; the making of a statement by the
out of court declarant while under the stress of the event’s excitement; and a connection between the
content of the statement and the event. United States v. Smith, 2019 U.S. Dist. LEXIS 91335, at *6
(M.D. Fla. May 31, 2019). Plaintiffs point to no evidence in the summary judgment record that Onelsi’s
alleged statements were made while still under the stress of any event. Plaintiffs’ allegation that “Ms.
Munoz will provide further foundation for this exception at trial” (Supplemental Brief, p. 9) is
improper and unavailing because they cannot escape summary judgment by identifying some
alternative evidence or source as a conduit for presenting the substantive content of the evidence at
trial to circumvent or cure the hearsay issue they face in the summary judgment record. (DE 2469.)
Plaintiffs cite to no evidence in the existing record and do not explain how that evidence satisfies a
hearsay exception.
Roberto Cardona Muñoz’s declaration (DE 2346-106): Alleged statements from El
Muelon and El Tripilla to Roberto are hearsay. Plaintiffs do not identify how these alleged statements
are admissible in their current form or how they could be reduced to admissible form at trial based
upon any witness or testimony in the summary judgment record. But even if the Court considers these
hearsay statements in Roberto’s declaration, Roberto has no personal knowledge of whether El
Muelon or El Tripilla was an operative of the AUC, (DE 2436-106, p. 2). Rather, Roberto’s belief that
these two men were operatives of the AUC is based on his allegations that they were “recognized by
the inhabitants of the area” and that the AUC “when they committed crimes identified themselves as
11
AUC or paras.” Plaintiffs do not identify these alleged “inhabitants of the area” or who they have
personal knowledge that El Muelon or El Tripilla belonged to the AUC or where there testimony is
found in the record. (DE 2499, p. 3). Also, Roberto’s declaration does not contain any evidence—
hearsay or otherwise—that El Muelon or El Tripilla identified himself as an operative of the AUC.
3. Decedent Miguel Rodriguez Duarte/Plaintiff Nancy Mora Lemus (M anjarres Action)
Deposition of Nancy Mora Lemus (DE 2348-45): Despite Plaintiffs’ arguments that Ms.
Mora’s decedent was killed by “AUC members, with identifying armbands” (Supplemental Brief, p.
10), the word “armband” is not used in Ms. Mora’s deposition. Ms. Mora testified that her husband
was killed by two men wearing sweatshirts and green shirts, and that their clothing had a wheel symbol.
(DE 2348-45, 65:21-66:11.) Ms. Mora did not recognize the symbol. (Id. at 66:8-14.) No evidence in
the record connects the AUC to a wheel symbol. And Ms. Mora admitted at her deposition that she
was unaware whether the two men she alleges killed her decedent belonged to any armed group in
Colombia. (Id. at 77:24-78:6.)
Police report and request for protection (DE 2346-76): Plaintiffs concede the declaration
of Jonathan Reiter purporting to establish facts in these police documents is inadmissible. The police
report and request for protection are inadmissible hearsay. Plaintiffs incorrectly contend that they are
admissible under the public records hearsay exception and fail to explain the exception’s applicability
here. (Supplemental Brief, p. 10) A record or statement of a public office is admissible under the public
records exception only if the record sets out: the office’s activities; a matter observed while under a
legal duty; or, in a civil case, factual findings from a legally authorized investigation, and is otherwise
trustworthy. Fed. R. Evid. 803(8). Government records that do not set forth factual findings as to an
interviewee’s allegations or statements are inadmissible. Williams v. Asplundh Tree Expert Co., 2006 U.S.
Dist. LEXIS 73238, at *10 (M.D. Fla. Oct. 6, 2006). In addition, statements made by a declarant to an
investigator “do not become immune to the hearsay rule” simply because the statements are recorded
by an investigator. Id. at *10-11. Finally, to satisfy the public records exception, the record or report
must be “based upon the knowledge or observations of the preparer of the report” and the record or
report cannot be “a mere collection of statements.” Mamani, 309 F. Supp. 3d at 1297.
Plaintiffs failed to provide the Court with a translated copy of the police documents and
pointed to nothing in the record that establishes the necessary foundation for application of the public
records exception. Even so, Defendants filed translations of portions of the documents which
establish their inadmissibility. (DE 2292-2, p. 7.) The police documents do not set forth any findings
12
as to Ms. Mora’s allegations, instead simply summarizing statements made by Ms. Mora to police. (Id.
at pp. 8-9.) These statements are inadmissible hearsay which do not become admissible merely because
they are made to an investigator. Williams, 2006 U.S. Dist. LEXIS 73238, at *10. Plaintiffs do not
identify a hearsay exception for Ms. Mora’s purported statements to police.
4. Decedent Waynesty Durango/Plaintiff Pastora Durango (M ontes Action)
Pastora Durango deposition (DE 2348-46): Plaintiffs cite to no testimony in Ms. Durango’s
deposition demonstrating that an operative of the AUC killed Ms. Durango’s son. Ms. Durango is not
competent to testify concerning the cited testimony (Supplemental Brief, p. 10.) There is no evidence
in the record establishing the basis of her personal knowledge on those points, and Plaintiffs do not
identify any hearsay exceptions or other witnesses to establish the admissibility of her secondhand
knowledge.
5. Decedent John Doe 11/Plaintiff Jane Doe 7 (New Jersey Action)
Jane Doe 7 declaration (DE 2348-130): Jane Doe 7’s declaration contradicts her sworn
deposition testimony with no supported explanation for the inconsistencies. The Court may disregard
Jane Doe 7’s declaration for that reason alone. At deposition, Jane Doe 7 did not know why John Doe
7 was killed and testified that the only basis for her belief that the AUC killed her husband was because
“they were the ones who were doing the killing during that time there.” (DE 2425-1, p. 1.)
Plaintiffs cite to no testimony of Jane Doe 7 for their newfound assertion that she gave
“confusing answers” because she was deposed through an interpreter or in which Jane Doe 7 told the
questioning attorney that she did not understand the questions being asked—let alone that she was
confused by questions related to her belief that the AUC killed John Doe 11. Seemingly unhappy with
her deposition testimony, Jane Doe 7 attempted to contradict her sworn testimony through
declaration. (DE 2348-130.) Plaintiffs’ post hoc attempts to muddy an otherwise clear record do not
constitute a reasonable explanation for the inconsistences between Jane Doe 7’s sworn testimony and
sham affidavit.
Jane Doe 7’s statement in her declaration that John Doe 11 appeared on an AUC kill list is
based on three levels of hearsay. Plaintiffs make no attempt to explain how each level is subject to a
hearsay exception. Plaintiffs concede that Jane Doe 7 declared only that she was told by John Doe 11
(hearsay level three) that he was told by unidentified “colleagues” (hearsay level two) that unidentified
13
AUC operatives 10 told these unidentified colleagues (hearsay level one) that John Doe 11 was on an
AUC list. (Supplemental Brief, p. 11; DE 2348-130, ¶ 17.) Plaintiffs argue that the second and third
levels of hearsay (unidentified colleagues’ comments to John Doe 11; statements from John Doe 11
to Jane Doe 7) are admissible as either excited utterances (Rule 803(2)) or as present sense impressions
(Rule 803)(1)). Fundamentally, however, Plaintiffs do not explain how the statements of unidentified
AUC operatives to John Doe 11’s unidentified coworkers are admissible or how they can be reduced
to admissible form. Without demonstrating the admissibility of this initial statement—something
Plaintiffs do not even attempt to do—evidence that John Doe 11 was purportedly on a “kill list”
should be excluded.
To fall under the present sense impression exception, “the statement describing or explaining
the event or condition must be made while the declarant was perceiving the event or condition or
immediately thereafter.” United States v. Scrima, 819 F.2d 996, 1000 (11th Cir. 1987). Even if her
declaration is to be believed, Jane Doe 7 admits that John Doe 11’s unidentified coworkers told John
Doe 11 about the list after they returned from work later that night. (DE 2348-130, ¶ 17.) In other
words, John Doe 11’s coworkers did not describe the alleged events to him while they perceived the
event, or immediately thereafter. John Doe 11’s coworkers’ hearsay statements are therefore not
admissible under the present sense impression exception.
The coworkers’ statements do not satisfy the excited utterance hearsay exception as discussed
above. There is no indication in Jane Doe 7’s declaration that the unidentified coworkers were under
the stress of their alleged conversation with unidentified AUC operatives at the time they spoke with
John Doe 11. 11 Moreover, Jane Doe 7’s declaration demonstrates that they gave John Doe 11 an
extended and detailed narrative of their purported encounter with unidentified AUC operatives. Thus,
these statements are not admissible under this exception. Likewise, Plaintiffs fail to demonstrate that
John Doe 11’s statements to Jane Doe 7 concerning John Doe 11’s coworkers’ purported statements
satisfies the excited utterance exception. There is no indication that John Doe 11’s conversation with
coworkers was a shocking event. Nor does Jane Doe 7 specify when the alleged conversation between
10
Contrary to the Court’s order (DE 2499), Plaintiffs provide no basis anywhere in the summary
judgment record for personal knowledge of John Doe 11’s coworkers that they were stopped by
operatives of the AUC. Plaintiffs also do not specify where in the record the coworkers are identified.
Instead, Plaintiffs simply presume that the original declarant was an operative of the AUC.
11
Plaintiffs argue that Jane Doe 7 can testify that John Doe 11 “told her that his colleagues appeared
frightened” when speaking with John Doe 11. But Plaintiffs provide no citation to any evidence in the
record to support this contention and Jane Doe 7 fails to mention it her declaration.
14
her and John Doe 11 occurred. She also does not indicate whether John Doe 11 was under any stress
when he told Jane Doe 7 about his conversation with his coworkers.
Finally, Plaintiffs argue that the statements of John Doe 11 to Jane Doe 7, and statements of
John Doe 11’s unidentified coworkers to John Doe 11, are admissible under Rule 807. The Eleventh
Circuit requires that five factors be met before evidence can be admitted under Rule 807: (1) notice;
(2) guarantees of trustworthiness; (3) materiality; (4) probativeness; and (5) a meeting of the interests
of justice by introducing the evidence. Scrima, 819 F.2d at 1000-01. Plaintiffs only argue that the second
factor is met. Their failure to even address the remaining four factors demonstrates that the hearsay
is not admissible under Rule 807. In any event, Plaintiffs fail to show guarantees of trustworthiness
for either set of hearsay statements. There are simply no indicia of reliability in statements that are
themselves unreliable hearsay not subject to any exceptions. 12
declaration (DE 2348-99): does not have personal knowledge
that paramilitaries had a reputation in the area for killing banana workers and union leaders. (Id. at ¶
15.) The declaration states that purported knowledge of this reputation was based on
“comments of people in the area.” does not identify these “people.” Because is
incompetent to testify as to the “reputation” of the AUC, Plaintiffs do not identify a witness from
whom this information became known to , and do not identify a hearsay exception which
would allow admission of “comments” from unknown “people in the area,” this portion of
declaration should not be considered. proffered modus operandi evidence (id. at ¶ 16)
should be excluded for the reasons discussed above. statement that the (unidentified)
convivir in town “killed people” is not based on his personal knowledge. (Id. at ¶ 17.) The only support
for this statement is what “[e]veryone in town” said. Plaintiffs have failed to identify a “specific
witness” in the summary judgment record from whom learned this. (DE 2499, p. 3).
12
Plaintiffs’ arguments that the hearsay statements of John Doe 11 and his coworkers is further
corroborated by John Doe 11’s “command” to make funeral preparations and that the AUC “stopped
buses and had kill lists” are factually and legally wrong. (Supplemental Brief, p. 11.) John Doe 11’s
hearsay statements to not “leave [him] out in the sun” are not admissible. Plaintiffs identify no hearsay
exception. Similarly, the hearsay statements are not corroborated by Plaintiffs’ argument that the AUC
“stopped buses.” Plaintiffs’ only citation for this statement is the expert report of Oliver Kaplan,
which is unsworn and not based on his personal knowledge, and is therefore unreliable for the “facts”
contained therein. (DE 2423, pp. 8-9.) Nor do Plaintiffs cite to any evidence based upon personal
knowledge to corroborate the hearsay statements that John Doe 11 was killed by the AUC because he
was on a list. Not only is that not supported in the record, but Plaintiffs cite to no admissible factual
evidence that the AUC had kill lists and killed those purportedly named therein.
15
Plaintiffs argue two alleged grounds to admit the evidence. Neither has merit and Plaintiffs
fail to explain how either ground could apply. Rule 701 allows, under limited circumstances, a
layperson to provide an opinion that is rationally based on his own perception. Fisher v. Arc Hous.
LLC, 2005 U.S. Dist. LEXIS 50840, at *3 (S.D. Fla. Nov. 16, 2005). When there is no indication that
a witness personally perceived the events about which he seeks to opine, a witness’s opinion testimony
is properly excluded. Id. at *3-5. Here, did not declare, and Plaintiffs do not argue, that he
ever saw an operative of a convivir kill anyone. Rule 701 provides no basis for admission of
purported beliefs concerning convivir. Plaintiffs’ second ground is Rule 803(21). Hearsay is admissible
pursuant to this Rule only if the reputation of a person is drawn from a well-defined community.
Donald v. UAB Hosp. Mgmt., LLC, 2015 U.S. Dist. LEXIS 138065, *9 (N.D. Ala. Oct. 9, 2015). Convivir
are not people, so this rule is inapplicable. Moreover, declaration does not—and Plaintiffs
do not—define the community from which the convivir’s reputation is drawn.
declaration (DE 2348-100): Plaintiffs do not identify any evidence in this
declaration demonstrating AUC responsibility for John Doe 11’s death.
Rigoberto Jimenez declaration (DE 2348-128) and declaration (DE
2348-127): These declarations may be excluded for untimely disclosure of the witnesses. Plaintiffs do
not address Defendants’ timeliness objections. (See DE 2423, pp. 9-10.) Plaintiffs do not identify any
evidence in these declarations demonstrating AUC responsibility for John Doe 11’s death. The
witnesses have no knowledge, personal or otherwise, concerning the death of John Doe 11.
6. Decedent /Plaintiffs Juana Doe 11 and Minor Doe 11A (C arrisoza )
Minor Doe 11A deposition (DE 2348-37): Plaintiffs concede there is no admissible evidence
in this deposition concerning whether an operative of the AUC killed the decedent.
Juana Doe 11 deposition (DE 2348-38): Plaintiffs concede that Juana Doe 11’s recitation of
Jose Mangones’s alleged “confession” to the death of is hearsay. (Supplemental Brief,
p. 12.) Plaintiffs argue that two hearsay exceptions could apply: the statement against interest exception
(Fed. R. Evid. 804(b)(3)) and the residual hearsay exception (Fed. R. Evid. 807). These exceptions are
inapplicable for the reasons discussed above.
Mangones Sentencia (DE 2346-72): This document is inadmissible for the reasons above.
7. Decedent Franklin Fontalvo Salas/Plaintiff Juvenal Enrique Fontalvo (M anjarres )
Juvenal Enrique Fontalvo deposition (DE 2348-39): Plaintiffs concede Mr. Fontalvo has
no personal knowledge of what happened when his son was allegedly kidnapped. (Supplemental Brief,
p. 13) (See also DE 2348-39, 68:4-16.) Nor does he have personal knowledge, or even hearsay
16
knowledge, of what happened to his son in the period between when the decedent was allegedly
kidnapped and when his body was discovered. (DE 2348-39, 68:4-16.) Plaintiffs also concede that Mr.
Fontalvo has no personal knowledge of the identities of the persons alleged to have taken his son
(Supplemental Brief, p. 13.) Mr. Fontalvo’s belief that an operative of the AUC killed his son is based
solely on what he was told by Alexander. (DE 2348-39, 73:3-6.) Plaintiffs do not identify any way
Alexander’s statements to Mr. Fontalvo are admissible and have not identified an applicable hearsay
exception based upon evidence in the existing summary judgment record.
Sergio Contreras declaration (DE 2346-58): Neither Plaintiffs nor Mr. Contreras identify
any basis for Mr. Contreras’s purported knowledge that “El Ruso” was an AUC commander, let alone
that the basis was personal knowledge and not second or thirdhand hearsay. Nor have they identified
any other source of competent evidence, through a specific witness identified in the summary
judgment record or hearsay exception, that El Ruso was an AUC commander. The declaration is
therefore inadmissible, and Plaintiffs have not identified how the information in Mr. Contreras’s
declaration could be reduced to admissible form at trial.
Ever Fontalvo declaration (DE 2346-59): Ever’s alleged interactions with unidentified
operatives of the AUC are inadmissible hearsay that cannot be reduced to admissible form. Plaintiffs
do not identify a hearsay exception for statements purportedly made by these unidentified AUC
operatives. Plaintiffs also fail to identify the basis for Ever’s knowledge that the men who allegedly
detained and threatened him were operatives of the AUC. Likewise, purported hearsay statements by
Mangones are inadmissible. Plaintiffs do not identify any hearsay exception for his alleged statements
to Ever. In addition, Plaintiffs do not identify any basis for Ever’s purported knowledge that El Ruso
or Mangones were AUC commanders in the area through personal knowledge not through second or
thirdhand hearsay. Plaintiffs do not identify any witness in the record who could testify as to how
Ever came into this knowledge. Ever’s statements in his declaration that AUC operatives in the
community wore armbands do not mention El Ruso, Mangones, or the unidentified persons who
allegedly threatened him. Plaintiffs do not contest his lack of personal knowledge on this point.
Unsworn audio statement of Alexander Camargo (DE 2346-56): “Unsworn statements
‘do[] not meet the requirements of Fed. Rule Civ. Proc. 56(e)’ and cannot be considered by a district
court in ruling on a summary judgment motion.” Carr v. Tatangelo, 338 F.3d 1259, 1273 n.27 (11th Cir.
2003) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 n.17 (1970)). As Plaintiffs concede, the
statements of Alexander Camargo are unsworn. They are also unauthenticated, not attached to any
supporting affidavit, and are not otherwise verified. These statements are therefore inadmissible and
17
should not be considered on summary judgment. Petty v. United Plating Inc., 2012 U.S. Dist. LEXIS
75355, at *7-8 (N.D. Ala. May 31, 2012). Plaintiffs’ argument that the statement is accompanied by a
“certifying declaration” is unavailing. (Supplemental Brief, p. 13.) First, Plaintiffs fail to provide a
citation to the purported certifying declaration and therefore fail to comply with DE 2499. Second,
the only possible document to which Plaintiffs could possibly be referring—the declaration of
Plaintiffs’ investigator, William Acosta (DE 2346-57)—only attests to the accuracy of the transcription
of Alexander’s unsworn audio statement. Mr. Acosta does not and cannot verify the contents of the
unsworn statement for lack of personal knowledge. The unsworn statement cannot be considered at
summary judgment.
Justice and Peace Letter (DE 2346-50): The cited document does not mention the name
Franklin Fontalvo Salas. The Justice and Peace letter itself is inadmissible hearsay, as are purported
hearsay statements contained in the letter. Plaintiffs identify no applicable hearsay exceptions for either
the letter itself or the statements in the letter. The only possibly applicable hearsay exception is the
public record exception in Rule 803(8). The public record exception is not satisfied when the
document is “a mere collection of statements from a witness” and there is no indication that the events
described in the record were based on the personal observations of the preparer of the record. Mamani,
309 F. Supp. 3d at 1297. Rather, when “the only conceivable explanation for how the information was
obtained was by listening to the hearsay statements of third-parties,” a record does not satisfy the Rule
803(8) exception. Moreover, “placing otherwise inadmissible hearsay statements into a government
report does not make the statements admissible.” Id.
Although the Court may exclude the letter for the reasons discussed above alone, the Court
should also exclude them because they were untimely produced many months after discovery closed.
Plaintiffs provide no explanation for the delay and do not argue that the 11 years between filing their
claims and the close of discovery was an inadequate time to prepare their claims.
Mangones Sentencia: This document is inadmissible for the reasons discussed above.
8. Decedent Pablo Perez 43A/Plaintiff Juana Perez 43A (D.C. Action)
Juana Perez 43A deposition (DE 2348-30): Juana Perez 43A testified that she attended a
Justice and Peace hearing wherein Mangones was asked and answered questions from unidentified
“people,” but she did not recall anything Mangones said while she attended the hearing. (DE 2348-
30, 104:25-105:4.) Any other statement by Juana Perez 43A concerning Mangones, or his purported
“confession” of responsibility for the death of her son, is not based upon her personal knowledge and
is hearsay not subject to any exceptions. Plaintiffs do not argue to the contrary. Moreover, Juana Perez
18
43A testified that despite her (at best) secondhand knowledge of Mangones’s purported “confession”
for the death of her son, Mangones was not the unidentified man who shot her son. (Id. at 105:5-11.)
Justice and Peace Letters (DE 2346-50, DE 2346-77): Plaintiffs fail to specifically explain
how these documents are currently in admissible form, or how the documents or their contents will
be reduced to admissible form at trial. For the reasons discussed above, the Justice and Peace letters,
and purported “confessions” within them are inadmissible hearsay not subject to any exception. The
Court should also exclude the letters because they were untimely produced. Plaintiffs concede that the
letters were not produced until four months after the close of discovery and after Defendants filed
their motions for summary judgment. (Supplemental Brief, p. 14.) Plaintiffs provide no explanation
for the delay and do not argue that the 11 years between filing their claims and the close of discovery
was an inadequate time to prepare their claims. The Justice and Peace letters should be excluded. De
Zayas v. Bellsouth Telecoms., Inc., 841 F. Supp. 2d 1257, 1258 (S.D. Fla. 2012).
9. Decedent Jose Lopez No. 339/Decedent’s Seven Surviving Children (Valencia )
deposition (DE 2348-94): testified that he heard what happened to
his father from his brother, , who heard what had happened from an unidentified woman. (DE
2348-94, 56:9-23.) This double hearsay cannot be reduced to admissible form because Plaintiffs do
not identify any hearsay exception for the statements of the unidentified female witness and because
the original declarant is not available to testify at trial. The purported statements of “El Aleman” to
are hearsay. (Supplemental Brief, p. 14.) Plaintiffs fail to explain how the hearsay statements
are admissible, or how they could be reduced to admissible form at trial.
deposition (DE 2348-95) and deposition (DE 2348-42): Any
purported statements from El Aleman to or are inadmissible hearsay that should be
excluded. Plaintiffs do not argue that this evidence is in admissible form and do not explain how that
could be presented in admissible form at trial.
Judgment against the Elmer Cardenas Bloc (DE 2346-93): This judgment is inadmissible
for the reasons discussed above.
10. Decedent John Doe 8/Plaintiff John Doe 7 (New Jersey Action)
John Doe 7 deposition (DE 2348-50): Contrary to Plaintiffs’ argument, John Doe 7 did not
testify that told John Doe 7 that he killed John Doe 8. Plaintiffs do not identify
any statement made by to John Doe 7 concerning the death of John Doe 7. Nor do Plaintiffs
explain how John Doe 7 even came into personal knowledge that was an operative of the
AUC. Thus, they cannot—and do not—explain how a non-existent “confession” to John Doe 7 found
19
nowhere in the record can be considered a statement against interest where Plaintiffs fail to identify a
statement at all. In addition, even if the Court concludes that made a “confession” in his
conversation with John Doe 7, a statement is not made against a declarant’s pecuniary or penal
interests when, at the time the statement was made, the declarant perceives no real peril. Smith v.
Islamic Emirate of Afg., 262 F. Supp. 2d 217, 219 (S.D.N.Y. 2003). Plaintiffs do not demonstrate that
perceived himself to face any penal or pecuniary peril at the time he allegedly spoke to John
Doe 7. The alleged “confession” is not admissible as a statement against interest. Plaintiffs’ attempts
to present modus operandi evidence (Supplemental Brief, p. 15 n. 19) is improper—John Doe 7 did not
testify as to AUC modus operandi, did not establish a basis for personal knowledge of modus operandi,
and, in any event, modus operandi evidence is inadmissible for the reasons discussed above.
John Doe 7 declaration (DE 2348-129): John Doe 7 stated that his only basis for believing
a person was an operative of the AUC was if “they had both short and long weapons.” (Id. at ¶ 13.)
But John Doe 7 did not explain the basis of this belief or how he came into personal knowledge that
only operatives of the AUC carried short and long weapons. John Doe 7’s declaration does not purport
to establish any other basis for his personal knowledge that operatives of his community belonged to
the AUC. The remaining cited paragraphs of the declaration do not establish that an operative of the
AUC killed John Doe 8.
declaration (DE 2348-98): Ms. does not establish the basis for
her personal knowledge that was an operative of the AUC. (Id. at ¶ 8.) Ms. admits
that she was told by “a friend” that John Doe 8’s body had been left at a farm, but that she does not
have personal knowledge of this fact. (Id. at ¶ 14.) Ms. did not identify this “friend,” who
has never been identified and is not on a witness list and will not testify at trial. Nor does Ms.
provide a basis upon which she has personal knowledge that the farm was one where the AUC left
bodies. (Id.) Plaintiffs do not explain a basis for her personal knowledge for any of the cited paragraphs
of her declaration and do not explain how this evidence could be reduced to admissible form.
declaration (DE 2348-126): Plaintiffs fail to cite to a specific portion of this
declaration that purportedly support their contentions that an operative of the AUC killed John Doe
8. Plaintiffs’ characterization of the declaration—that the witness saw and knew that the AUC
murdered and targeted union leaders—is irrelevant to the case of John Doe 8, which contains no such
facts. Plaintiffs concede that has no personal knowledge concerning the death of John Doe
8. To the extent Plaintiffs seek to introduce modus operandi evidence of the AUC through , that
evidence is inadmissible for the reasons discussed above.
20

Rigoberto Jimenez declaration (DE 2348-107): Plaintiffs fail to cite to a specific portion of
this declaration which purportedly support their contentions that an operative of the AUC killed John
Doe 8. Plaintiffs concede that Jimenez has no personal knowledge concerning the death of John Doe
8. To the extent Plaintiffs seek to introduce modus operandi evidence of the AUC through Jimenez, that
evidence is inadmissible for the reasons discussed above.
THE WOLF PLAINTIFFS 13
The two Wolf Plaintiffs rely extensively on the expert report of Manuel Ortega in their failed
attempt to establish their decedents were killed by an individual who was an operative of the AUC.
(DE 2508.) The Wolf Plaintiffs retained Ortega, a former FBI agent, to offer two opinions: (1) the
Wolf-Plaintiffs’ decedents were more likely than not killed by the AUC and (2) that that the extortion
payments made by Chiquita were an “important source of funding” for the AUC. (DE 2326). Ortega
will soon be the subject of a Daubert motion. His report and testimony are in any event inadmissible.
Ortega did not review the sworn deposition testimony of any Plaintiff, the sworn deposition
testimony of any former AUC commander or operative deposed in these cases, or otherwise validate
any Plaintiffs’ interview statements. Instead, Ortega simply took his clients’ statements at face value
and assumed that they were true. That alone renders his opinion inadmissible. See S.E.C. v. Lipson, 46
F. Supp. 2d 758, 763 (N.D. Ill. 1998); United States v. Cruz, 981 F.2d 659, 664 (2d Cir. 1992). Ortega
has no personal knowledge of the facts concerning each decedent’s death. His unreliable opinions,
taking at face value the unsworn interviews with Plaintiffs and then applying a temporal and location
only methodology that does nothing more than look at where and when a decedent was killed before
placing his expert ipse dixit on AUC responsibility, cannot defeat summary judgment.
1. Decedent Hector Manuel Villegas Echavarria/Plaintiff Maria Villegas Echavarria
Deposition of Maria Emilse Villegas Echavarria. Hearsay statements from Mr. Villegas to
Ms. Villegas are inadmissible and not subject to any exception. Rule 804(b)(3)’s statement against
interest hearsay exception applies only to statements against pecuniary/proprietary or penal interest.
Alleged personal safety concerns do not satisfy Rule 804(b). 14 Hearsay statements from an unidentified
13
Doe 378 (as identified by Attorney Wolf) is Maria Emilse Villegas Echavarria and Doe 840 (as
identified by Attorney Wolf) is Genoveva Isabel Borja Hernandez. (DE 2435).
14
Moreover, Ms. Villegas has not explained that the declarant or her property was in any peril at the
time the statement was made. Smith, 262 F. Supp. 2d at 229 n.18.
21
“lady” to Ms. Villegas’ mother, who then spoke to Ms. Villegas, describing Mr. Villegas’s death are
inadmissible triple hearsay not subject to any exception.
Death certificate of the victim. This document is hearsay and has not been authenticated.
Letter from hospital about autopsy. This document is hearsay and has not been authenticated.
Letter from prosecutor's office in Chigorodo. This document is inadmissible for the reasons stated
above. Letter from Accion Social. This document is inadmissible for the reasons stated above
addressing Justice and Peace file content. Moreover, Plaintiffs do not identify any hearsay exception
for the document or any of the statements within the letter. Nor have Plaintiffs authenticated the
document, or explain how the document may be authenticated at trial. Lastly, Carlos Eusse–who Ms.
Villegas claims can authenticate documents––was never disclosed in the record. Plaintiffs do not
identify any person in the record who can authenticate this document. Letter from Unit for the
Attention and Integral Reparation of Victims. This document is inadmissible for the reasons sated
above addressing inadmissibility of Justice and Peace file content. Another letter from Accion Social.
This document is inadmissible for the reasons stated above addressing inadmissibility of Justice and
Peace file content. Accion Social Form. This document is inadmissible for the reasons sated above
addressing inadmissibility of Justice and Peace file content.
2. Decedent Giovanni Rivas Borja/Plaintiff Genoveva Isabel Borja Hernandez
Ms. Borja’s Testimony. Ms. Borja did not witness Mr. Rivas’s death. (DE 2282-29, 43:19-
22.) Ms. Borja identified one of the men who abducted her son, but her sole basis for assuming her
son’s killer was a “known AUC commander” is that an unidentified now-deceased neighbor told her
the man was an operative of a paramilitary group. (Id. at 47:1-49:21; 50:7-52-9.) Plaintiffs have failed
to identify where in the record this witness is named. Ms. Borja does not explain what hearsay
exception the statement of the unidentified now-deceased neighbor would be admissible. The
testimony of family members of Ms. Borja. The purported testimony of Ms. Borja’s family
members is not in the record and cannot be considered at summary judgment.
Letters from Accion Social. This document is inadmissible for the reasons stated above.
Letter from the prosecutor’s office in Turbo and a letter from the Commission of Justice and
Peace. These documents are inadmissible for the reasons stated above. The Decedent’s Death
Certificate, Decedent’s Birth Certificate, Birth Certificate of Substitute Plaintiff, Plaintiff's
Death Certificate, Victim's Father's Birth Certificate. These documents are hearsay and have not
been, and cannot be, authenticated.
22
Dated: July 22, 2019 Respectfully submitted,
/s/ Michael L. Cioffi

Michael L. Cioffi (pro hac vice)
Thomas H. Stewart (pro hac vice)
Kevin M. Bandy (pro hac vice)
Blank Rome LLP
1700 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202
Tel: (513) 362-8701/04
Fax: (513) 362-8702/93
Email: cioffi@blankrome.com
stewart@blankrome.com
kbandy@blankrome.com
Frank A. Dante (pro hac vice)

Melissa F. Murphy (pro hac vice)
Blank Rome LLP
One Logan Square
130 N. 18th Street
Philadelphia, PA 19103
Tel: (215) 569-5645
Fax: (215) 832-5645
Email: dante@blankrome.com
Counsel for Defendant, Chiquita Brands

International, Inc. and on behalf of the Individual
Defendants in cases selected for summary judgment
briefing
CERTIFICATE OF SERVICE
I hereby certify that on July 22, 2019 I electronically filed this document with the Clerk of the
Court using CM/ECF which will automatically generate and serve Notices of Electronic Filing on all
counsel of record.
/s/ Michael L. Cioffi

Michael L. Cioffi

Chiquita Supplement Re Hearsay Exceptions in Summary Judgment

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Case 0:08-md-01916-KAM Document 2516 Entered on FLSD Docket 07/22/2019 Page 1 of 25

UNITED STATES DISTRICT COURT

IN RE: CHIQUITA BRANDS INTERNATIONAL, INC.

This Document Relates to:

DEFENDANTS’ CONSOLIDATED RESPONSE TO

Hasbún indictment (DE 2346-78): This document is inadmissible as discussed above.

Dated: July 22, 2019 Respectfully submitted,

/s/ Michael L. Cioffi

Frank A. Dante (pro hac vice)

Counsel for Defendant, Chiquita Brands

/s/ Michael L. Cioffi

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