Case 0:08-md-01916-KAM Document 2556 Entered on FLSD Docket 09/25/2019 Page 1 of 7

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)

__________________________________________/

Response to Order on Status Conference [DE 2555]

The Plaintiffs represented by undersigned counsel plan to file a Notice of Appeal of the

Court’s September 6, 2019 Order Granting Summary Judgment on the bellwether cases, on about

October 6, 2019. The Court’s sua sponte certification of its Order for interlocutory review

doesn’t appear to serve the same function, or to have set into motion the procedures for the

transfer of the case. The Plaintiffs have to file this Notice in order to avoid waiving their right to

appeal. However, until a Notice of Appeal is filed by one of the parties, the District Court

retains jurisdiction.1

1
Other than for issues involving the confidentiality of the plaintiffs’ names, since that is the
subject of a separate appeal. See Case No. 19-11494.
1
Case 0:08-md-01916-KAM Document 2556 Entered on FLSD Docket 09/25/2019 Page 2 of 7

Before that happens, the Court should stay its Order and reconsider the path the case is

about to take. For ten years now, undersigned counsel’s main goal has been for his cases to be

remanded to the U.S. District Court for the District of Columbia (“D.C.”), where they were first-

filed.2 We did a lot of work to prepare bellwether cases for trial, and brought the first six

plaintiffs to the United States for depositions on 60 days notice, even though none of them were

included in the two scheduled trials. In return, we received almost nothing in discovery, other

than the Defendant’s Rule 16(a)(1) initial disclosures, which the Defendant had already prepared

for other litigation.

The issues on appeal are either procedural, or about the forum's standard for summary

judgment. The Court already recognized that forum law applies to procedural matters, when it

applied the law of the District of Columbia to decide a Motion to Dismiss filed by the Defendant

on the grounds of statute of limitations. D.E. 1194 at 28-30. Claims filed by Attorney

Collingsworth after the three-year general limitations period in D.C. Code § 12-301 had run were

held to be barred. Id. Evidentiary issues are also procedural, 3 as is the authentication of

documents. The Eleventh Circuit shouldn’t hear procedural, pre-trial issues for cases filed in the

District of Columbia, when the Plaintiffs have made clear their intent to be remanded under

2
The only contact this case has to Florida or the 11th Circuit is that the Defendant and Plaintiffs’
Counsel Terry Collingsworth asked the JPML to transfer it here from the District of Columbia,
which is where the criminal case was prosecuted, and where Chiquita’s employees and agents
met with Department of Justice officials, and according to Chiquita, got the DOJ’s permission or
acquiescence in the payments. Relatively few cases were first-filed in Florida, according to the
method specified by the Court for counting them. DE 865.
An argument could also be made that the 6th Circuit has the greatest interest in this case, since
most of the Defendants’ criminal conduct took place in Cincinnati Ohio. The Court omitted case
No. 17-80475-CIV-MARRA, Does 1-2146 v. CBI from the caption of its Order. However,
should these cases ever go to trial, the evidentiary issues should be governed by 6th Circuit law.
3
It may be an oversimplification to say that evidentiary rules are procedural, although they have
long been considered so. See e.g. Walter Wheeler Cook, "Substance" and "Procedure" in the
Conflict of Laws, Yale Law Journal Volume 42 Issue 3 Article 2 (1933).
2
Case 0:08-md-01916-KAM Document 2556 Entered on FLSD Docket 09/25/2019 Page 3 of 7

Lexecon v. Milberg Weiss, for trial in D.C. In particular, the Court’s application of the Daubert

standard to a law enforcement expert4 is an evidentary issue that should be decided according to

forum, or D.C. law.

The other issue on appeal is the standard of proof required under Anderson v. Liberty

Lobby and Plaintiffs’ theory that their burden is only to show causation by a preponderance of

the evidence (that it was “more likely than not” that the crime was committed by the AUC). This

4
Manuel Ortega is an ordinary law enforcement expert. Statistics show that law enforcement
officers are more likely to be qualified as expert witnesses than any other kind of expert. See
Jennifer L. Groscup & Steven D. Penrod, Battle of the Standards for Experts in Criminal Cases:
Police vs. Psychologists, 33 SETON HALL L. REV. 1141, 1150 (2003). The Groscup study
surveyed 1,800 cases, involving both civil and criminal experts, although the results used in this
article were from a selection of experts testifying in criminal cases. Id. "Police officers, who are
admitted frequently, represent the high end of the continuum of admissibility. Police officers
were admitted 85.7% of the time overall. ... Police officers continued to be admitted at a
consistently higher rate than all other experts over time." Id. at 1155.
Ortega’s methodology is similar to that used in narcotics investigations. See United States v.
Escalante, 221 F. App'x 946, 948 (11th Cir. 2007) (common practices of Mexican drug
trafficking organizations); United States v. Gaines, 105 F. App'x 682, 699 (6th Cir. 2004) (DEA
agent testified about the "tools of the drug trade to establish the modus operandi of drug
traffickers"); United States v Ledbetter, 929 F.3d 338 (6th Cir. 2019) (recognizing testimony
regarding inner-workings of organized crime as proper subject of expert testimony, and
upholding admission of police detective’s expert opinion testimony on gang culture and customs
as rationally based on his perception of gang activities and use of gang related signs during time
as police officer); United States v. Maher, 645 F.2d 780, 783-84 (9th Cir.1981) (DEA agents
testified defendant's activities were similar to the modus operandi of people conducting
countersurveillance while transporting drugs); United States v.Lockett, 919 F.2d 585, 590 (9th
Cir. 1990) (explaining typical cocaine packing operation); Jay M. Zitter, Annotation,
Admissibility of Drug Courier Profile Testimony in Criminal Prosecution, 69 A.L.R.5th 425, 425
(1999). The non-Wolf plaintiffs’ counsel do not have a comparable expert, and hired a
university professor as an expert on Colombia. In comparison, Ortega spent much of his career
as an FBI agent prosecuting kidnappings and drug trafficking by the AUC, FARC and other
illegal groups in Colombia, and interviewed Ever Veloza Garcia and other paramilitary
commanders as a part of his job. He was also one of the main agents who prosecuted the
underlying criminal case. As such, Chiquita could object that Ortega is too credible – so credible
that a jury would automatically side with him, and this could be unfairly prejudicial. The Court
has gone in the opposite direction, by finding Ortega’s methods to be unreliable. His methods
are simply to compare the facts of these cases with what he learned as an FBI agent about the
AUC and similar organizations, much of which is based on his own personal experience and
observation.
3
Case 0:08-md-01916-KAM Document 2556 Entered on FLSD Docket 09/25/2019 Page 4 of 7

is intertwined with the expert issue. The jury won't be able to understand the context of these

murders without expert testimony. 5 The Wolf Plaintiffs have a law enforcement expert who has

personal knowledge of the context, the modus operandi, and territorial control of the AUC. The

use of such testimony is commonplace in criminal prosecutions of drug traffickers, organized

crime, and gangs. 6

We also believe the Court’s certification for interlocutory appeal is premature, since the

Court only decided some of the evidentiary issues that will arise. For example, in a Status

Report filed on August 27, 2019, Plaintiff Ludy Rivas filed two additional documents that were

not part of the summary judgment record, yet represent common situations. DE 2540. One was

a letter from the national prosecutor’s office stating that paramilitary commander Raul Hasbun

confessed to the crime on June 15, 2017. DE 2540-3 at 10. She also filed an autopsy report, id.

at 2-9, and although it is untranslated, clearly shows nine bullet wounds, id. at 9, which is more

than a mere scintilla of evidence, especially considering the family recognized one of the

paramilitaries, and AUC commander Raul Hasbun confessed to the crime. The criminal

standard, “beyond a reasonable doubt,” generally takes into account the totality of the

circumstances, rather than looking at each piece of evidence which, by itself, is insufficient.

There is no doubt this evidence would support a warrant under the probable cause standard,

5
It was not, as Chiquita argues, a context in which the group massacring people was unknown.
Their campaigns are described in great detail in their criminal sentences, which are valid
judgments of a foreign court. The paramilitary commanders didn't have an incentive to admit to
every crime they were accused of, and didn't do so. They testified, sometimes for weeks, about
the operations of their blocks, and accepted responsability for murders that appeared to them to
have occurred in the course of those operations. They oversaw the murder of hundreds of
thousands of individuals, and did not need to know the identity of the victim or the killer, to
accept criminal responsibility for it.
6
The Wolf Plaintiffs would be prejudiced by a ruling equating Ortega to a generic expert
witness, which is what the non-Wolf plaintiffs will be promoting as aggressively as possible to
the court of appeals; that their generic expert witness is knowledgable about the same things.
Maybe so, but it's a weak argument compared to the case law on law enforcement experts.
4
Case 0:08-md-01916-KAM Document 2556 Entered on FLSD Docket 09/25/2019 Page 5 of 7

which means a crime was probably committed and that the defendant probably commited it.

This is essentially the same standard the Plaintiffs have to prove.

In addition, Carlos Eusse, the Wolf Plaintiffs’ expert on the Accion Social aid agency, is

analyzing the Plaintiffs’ correspondence with Accion Social according to standards used by the

Court; whether the author of the document had a legal duty to report, and so on. Finally, there

are other categories of cases that could be identified, out of the thousands that are in Court, such

as cases with eyewitnesses, or cases which were part of massacres and better investigated by the

Colombian police. If the bellwether process didn’t work, the plaintiffs could be allowed to put

their best foot forward and choose which cases they want to go to trial first.

Besides the new evidence filed by Ms. Rivas, the issues raised by Doe 265 also deserve

attention before involving the court of appeals. The Court may recall the facts of this case,

where the victim made a dying declaration to his wife, Plaintiff Doe 265, before he was killed,

that he had been warned that men had arrived looking for him and that he thought they must be

paramilitaries. DE 2325 at 23-24. After he was murdered, Plaintiff Doe 265 believed she was

being followed, and contacted a priest who acted as an intermediary or negotiator for the AUC,

to plead for her own life. Id. She was reassured that she was in no danger herself, and that the

AUC knew she was not involved in her husband’s activities. Although she didn’t speak directly

with the AUC, she did receive an indirect acknowledgement from them of their responsibility.

This Plaintiff’s evidence wasn’t hearsay, and the Court wouldn’t weigh the credibility of it at this

stage. Yet situations like hers would be left out of the interlocutory appeal.

The Court also analyzed inconclusive testimony by paramilitary Raul Hasbun, submitted

by the non-Wolf Plaintiffs counsel as an exhibit to their opposition to summary judgment. DE

2346-78. This means her case hasn’t be resolved yet. It shouldn’t reflect negatively on Ludy

5
Case 0:08-md-01916-KAM Document 2556 Entered on FLSD Docket 09/25/2019 Page 6 of 7

Rivas, whose crime was confessed by Mr. Hasbun, satisfying the criminal standard in Colombia.

Rivas only has to prove the same fact by the preponderence of the evidence.7 Decisions of

Colombian courts, including the sentences of paramilitary commanders, should be judicially

recognized by the federal courts, not inadmissible as hearsay. We are currently working to

obtain apostilles for various decisions of the Superior Tribunal of Medellin, which prosecuted the

AUC. The Court should recognize this foreign judgment as conclusive of the causation issue in

Rivas case, and allow plaintiffs to present evidence that they have already won their cases in

court in Colombia. The “Justice and Peace Chamber” (“Sala de Justicia y Paz”) is a court of

competent jurisdiction whose decisions deserve judicial recognition.

The Court should also allow Ludy Rivas and Doe 378 more time to obtain the evidence

for their cases in admissible form. These cases weren’t set for trial, in this or any other Court.

These Plaintiffs shouldn’t be punished for bringing the authentication issues to the Court’s

attention, unlike counsel for the cases set for trial in late October, who tried to bluff their way

through. See DE 2510 at 6. (“Attorney Wolf’s statement about apostilles, DE 2508-8, is

inaccurate. … Plaintiffs will obtain official copies from the appropriate agency where necessary

and an apostille for all documents from the Colombian consulate in the United States.”) The

parties have put a lot of work into these cases, which came from a pool of 350, and were not

selected with these evidentiary and authentication issues in mind. We think it also benefits this

whole process if some of the hearsay and authentication issues can be resolved, even if late.

7
Of course, Chiquita’s guilty plea was also according to the criminal standard, “beyond a
reasonable doubt.” If the Court would recognize these two criminal judgments, Ludy Rivas
would win in partial summary judgment on the issue of causation.
6
Case 0:08-md-01916-KAM Document 2556 Entered on FLSD Docket 09/25/2019 Page 7 of 7

Conclusion

For the foregoing reasons, the Court should stay its Order of September 6, 2019, so that

counsel doesn’t have to file a Notice of Appeal. The Order will not have the intended beneficial

effect of clarifying the burden of proof or the use of expert law enforcement testimony, because

those are issues the D.C. Circuit should decide.

Respectfully submitted,

/s/ Paul Wolf

_______________________
Paul Wolf, DC Bar #480285
Attorney for Plaintiffs
P.O. Box 21840
Washington, DC 20009
(202) 431-6986
paulwolf@yahoo.com

September 25, 2019

Certificate of Service

I hereby certify that on this 25th day of September, 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