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On Sept 11, 2018, the Court denied Plaintiffs' First Motion to Remand, "WITHOUT
PREJUDICE for Plaintiffs to renew their motion after the resolution of any dispositive motions."
Omnibus Order, DE 2094 at 1. The Defendant's Daubert Motion was filed before dispositive
motions were decided, on the deadline for pre trial motions, for trials in which Mr. Ortega isn't
involved.1 DE 2521. However, since the Court is deciding summary judgment motions for two
of our test cases, the Plaintiffs don't object if the Court includes Mr. Ortega in its Daubert ruling.
1
The caption on the Defendants' Motion refers to only one of the above-captioned cases, the
disputed "Does 1-144." Representation of these individuals is currently subject to a pending Cross
Motion to Sever. DE 2373. Should the Court find that undersigned counsel represents Does 11-
144, they would be severed from the other cases added to Complaint 08-80465-CIV-MARRA by
Attorney Collingsworth, and go to trial in the U.S. District Court for the District of Columbia.
Otherwise, if Collingsworth and/or Conrad & Scherer, LLP represent Does 1-144, Mr. Ortega
would not be involved.
1
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In addition, the undersigned Plaintiffs join in the non-Wolf Plaintiffs' Motions in Limine
and Request for Daubert Hearings regarding Chiquita's purported experts Sanchez, Rincon,
Cuadrado, Flemmons, Gadis, Otero, DE 2527, and Motion to Strike Cuadrado as an improperly
paid fact witness, DE 2520, should the Court want to apply these pre-trial rulings to the instant
cases. 2 This is within the Court's discretion, and should be guided by principles of stare decisis,
FACTUAL SUMMARY
Mr. Ortega analyzed the facts of two bellwether cases discussed herein based on notes
made of previous interviews of the Plaintiffs, his own face-to-face interviews of the Plaintiffs in
Medellín, Colombia, and documents provided in discovery to Chiquita. His analysis of the facts
The Defendant's challenge is limited to Mr. Ortega's opinion that the AUC "probably"
committed these crimes. The Defendant doesn't challenge Mr. Ortega's opinions that making
payments to terrorist organizations is a serious crime, or that Chiquita paid $1.7 million dollars to
the AUC, and a similar amount to the FARC and other illegal armed groups. The Defendant
mischaracterizes Mr. Ortega's opinion that payments of thousands of dollars would have been a
"supporting" source of funding for the AUC, as being an "important" source of funding, which is
a legal conclusion or judgment he did not attempt to make. His opinion is that "Money payments
to the AUC would have furthered their ability, AUC, to commit these murders and control their
area of operations. [sic] As the most prominent banana company in Uraba, the millions of dollars
paid by Chiquita to the AUC and other terrorist groups also set a bad example for other companies
2
Of these, only Sanchez and Rincon were disclosed to me, and produced their reports to me. The
others I only learned about from reading the public filings in other cases in the MDL.
2
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in the region." DE 2329 at 19.3 Only Chiquita's experts attempted to weigh the importance of this
evidence, or estimate the finances of the AUC. 4 This is despite the fact that Mr. Ortega was one
of the top FBI agents in Colombia for much of his career, and personally investigated and
SUMMARY OF ARGUMENT
The Defendant's Daubert Motion challenges Mr. Ortega's conclusion that the AUC was
"probably" responsible for these two crimes.5 Of the four Daubert factors, the Defendant
challenges the reliability of the methods used by Mr. Ortega, without making any specific
criticisms. See Defendant's Consolidated Daubert Motion, DE 2521 at 20. As he explains in the
report, Ortega's conclusion was based on: 1) the location of the murders relative to AUC Blocks;
2) the circumstances of the murders, which suggest that they were not common crimes; and 3)
statistics of the murders committed in the Uraba region. DE 2329 at 15. Instead of pointing out
flaws in these methodologies, the Defendant argues that "Ortega applied no discernable expert
methodology but merely regurgitated what the Plaintiffs said, then speculated regarding the weight
the jury should give such evidence, which is clearly improper under the third part of the Rule 702
test. Cook, 402 F.3d at 1110-11." Id. Since Mr. Ortega's credentials, methods and analysis are
3
The Defendant quotes from page 5 of the Report, which includes the word "important" in the
scope of the assignment. However, Mr. Ortega's opinion didn't go that far. Id. at 19.
4
Mr. Ortega testified in his deposition that from his experience as an FBI agent, it cost the AUC
approximately $10,000 to equip a member of the AUC including weapons, ammunition, uniforms,
and othe gear, and not including their salary. I did not purchase a copy of the transcript and am
relying on Mr. Ortega's written report.
5
Plaintiff Doe 840 has recently learned that AUC commander Raul Hasbun confessed to this crime
two years ago. DE 2540-4 at 10-11. However, the Doe 840 never received notice of this, until
she appeared in person at the fiscalia to request a new letter, since her previous correspondence
from the fiscalia appeared too old to receive an Appostile. What she received was a notarization
of her original letter, and a new letter, and computer form, stating that Raul Hasbun confessed to
the crime on DATE. Id. However, this new letter is not part of the summary judgment record
and the Court should not rely on it.
3
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unimpeachable, and he did not offer an opinion on the importance of Chiquita's financing to the
ARGUMENT
Federal Rule of Evidence 702 provides that a witness who is qualified as an expert by
knowledge, skill, experience, training or education may testify in the form of an opinion or
otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine afact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and,
(d) the expert has reliably applied the principles and methods to the facts of the
case.
Fed. R. Evid. 702. In applying Rule 702 and the Supreme Court's decision in Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579 (1993), district courts are viewed as gatekeepers responsible for
ensuring "that speculative, unreliable expert testimony does not reach the jury." Hughes v. Kia
Motors Corp., No. 13-10922 at *22 (11th Cir. Sept. 12, 2014), quoting McCorvey v. Baxter
Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002). Whether an expert's testimony is reliable
depends on the "particular facts and circumstances of the particular case." Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 152, 119 S. Ct. 1167, 1176 (1999).6
A. Mr. Ortega's specialized knowledge will help the jury understand the
evidence.
6
Law enforcement officers may also testify to opinions under FRE 701, depending on the
sophistication of the opinion. See Advisory Committee Notes to 2010 Amendment to Rule 701,
citing United States v. Figueroa-Lopez, 125 F.3d 1241, 1246 (9th Cir. 1997). In Figuera-Lopez,
law enforcement agents were allowed to testify that the defendant was acting suspiciously without
being qualified as Rule 702 experts; however, Rule 702 applied where the agents testified on the
basis of experience that the defendant was using code words to refer to drug quantities and prices.
4
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From approximately 2004 to 2010, Manuel Ortega investigated Chiquita’s payments to the
AUC in his job as a Special Agent of the FBI. Ortega Declaration, DE 2329 at 4. His investigative
work included interviewing incarcerated AUC members to determine amounts paid by Chiquita to
that organization. Id. He also interviewed demobilized former AUC members. Id. He testified
that he is personally familiar with Chiquita’s payments to the AUC. Id. His career at the FBI
spanned from 1986 to 2012. Id. at 3. Since 1990, most of his work has involved investigations of
criminal activity in Colombia. Id. This includes organized criminal groups in Colombia, such as
the FARC, ELN, and the AUC. Id. He also has significant on-the-ground experience in Colombia,
During his 25 years at the FBI, he gained significant experience in the conducting criminal
and counter-terrorism investigations. Id. This includes investigations into the identity of groups
that conducted kidnappings and murders of American citizens in Colombia, Panama, as well as
other Latin American and Caribbean countries. Id. He also gained significant experience
regarding terrorist groups that operated, such as, Fuerzas Armadas Revolucionarias de Colombia
(FARC), the Ejercito de Liberacion Nacional (ELN), the Ejercito Popular de Liberacion (EPL),
the Movimiento 19 de Abril (M-19), and the Autodefensas Unidas de Colombia (AUC). Id.
training on numerous topic, including how to develop and run cases, legal training (presentation
evidence, evidence collection, chain of custody, case investigation, protocols, informant handling,
techniques. Id.
5
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Throughout his career, Mr. Ortega also received ongoing “in-service” training. Id. This
in-service training focused on subject matters related to work on particular squads (terrorism,
Kidnapping, and Drugs), and the nature of the investigative duties on each squad. Id. He received
training on, among other things, identification of terrorist groups responsible for perpetrating
nature, and the history of such groups including AUC, FARC, ELN, and al Qaeda. Id.
Additionally, through his experience and work in the field, as well as case related research on Latin
American terrorist organizations, he has familiarity with the ELN, EPL, FARC, M-19, and
paramilitary organizations (AUC). Id. He also received in-service training on how to conduct
investigations (criminal, kidnapping, murders, Drug trafficking, etc.), source handling, undercover
operations and undercover certifications, as well as training on how to develop and evaluate the
credibility of evidence to support a case for possible prosecution. Id. From 1987 until 1990, he
worked with the Bank Robbery/fugitive Squad in Miami, Florida. Id. In this role, he investigated
and developed evidence regarding bank robbery cases in south Florida. Id.
From 1990 through 1997, he worked on Drug squads and focused on drug trafficking and
drug trafficking organizations in Colombia. Id. at 4. During this period, he also became familiar
with the history and operations of groups perpetrating organized crimes in Colombia, such as the
FARC, ELN, EPL, M-19, and the AUC. Id. He liaised with foreign services, and coordinated
From 1997 until 2001, he performed Racketeering Investigations. Id. In this role, he
generated sources and developed cases for transfer to case agents. Id. In this period, he became
very familiar with the history and operations of the AUC by conducting source interviews. Id.
For instance, he interviewed individuals who were closely connected to one of the founder of the
6
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AUC, Carlos Castano. Id. These individuals include Rodrigo Tovar Pupo (Jorge 40), Hebert
Velosa Garcia ( HH, Cara Pollo) and other block leaders. Id. he was the lead investigator, for the
FBI in the following cases; Chiquita, and the three American missionaries, who where
After 9/11, his focus shifted to terrorism. Id. From the fall of 2001 until his retirement
from the FBI in 2012, he focused exclusively on counter terrorism investigations, including the
Kidnappings and murders of American citizens by foreign terrorist organizations. Id. Initially,
from 2001 to 2004, he worked with the Joint Terrorism Task Force, and served the remaining eight
years of his FBI career on the Extraterritorial Squad. Id. In this role he coordinated international
terrorism investigations in Caribbean and Latin American countries. Id. Throughout his tenure
on the Extraterritorial Squad, he also coordinated and conducted training presentations and
In addition to numerous other investigations, from approximately 2004 to 2010, Mr. Ortega
investigated Chiquita’s payments to the AUC. Id. at 4. His investigative work included
personally familiar with Chiquita’s payments to the AUC. Id. He is uniquely qualified as an
As a Special Agent of the Federal Bureau of Investigation, the witness acquired significant
expertise in the fields of drug trafficking and international terrorism. The Supreme Court has
cautioned the courts to defer to the informed judgment of Executive Branch national security
7
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Holder v. Humanitarian Law Project, 561 U.S. 1, 130 S. Ct. 2705, 2727-28 (2010) (citations to
record omitted) Although the Court need not defer to any of Mr. Ortega's opinions to decide a
The six homicides Ortega analyzed occured in the context of a paramilitary campaign of
murder and torture aimed at civilian supporters of left-wing political organizations, which were
seen as supportive of the FARC guerrillas. DE 2329 at 6. The murders occurred in one of the
most violent regions of the conflict, Urabá, which is also where the Defendant's Colombian
8
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He saw no evidence that any of the six victims were collaborating with the guerrillas. Id.
One defied a curfew that was in place, and was killed after ignoring an instruction by the
parmilitaries to stop, probably because he was hard of hearing. Id. The other was abucted in front
of his family in the middle of the night by armed assailants, one of whom was identified and named
by the plaintiff. Id. In several cases, the victim was not the only person in the family who was
murdered by the paramilitaries. Id. This is consistent with the belief generally held by the
paramilitaries that entire families supported the guerrillas and had to be exterminated. In none of
At the time these murders occured, the Colombian authorities were unable or unwilling to
investigate the thousands of murders occuring in Urabá. Id. This was due to a number of factors,
including that the general public was often too frightened to cooperate with the police, the
reputation for ineffectiveness and corruptability of the Colombian justice system, and the fact that
the Colombian army and some police officers collaborated with the paramilitaries or were
members. Id.
Mr. Ortega testified that the locations of the murders were important in determining
responsibility. Id. at 15. They all occurred in urban areas in Apartado and Turbo, in Uraba. Id.
These towns were controlled by the AUC between 1995 and 1997, the range of dates of the cases
reviewed. Id. They were controlled by the Bloque Bananero of the AUC, with Turbo under the
control of Ever Veloza Garcia (HH), and in Apartado under the control of Raul Hasbun. Id. The
only armed groups that operated in urban areas at that time where members of the AUC. Id. It
would be highly unlikely for groups of common criminals to operate in an area controlled by the
AUC. Id.
9
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Mr. Ortega also explained that the AUC used distinctive modus operandi, that distingiush
their crimes from those of the FARC or of common criminals. Id. at 16. The AUC would generally
patrol urban areas on motorcycles, with one person driving the motorcycle and the secound rider
seated facing backwards, armed with an assault rifle. Id. When tasked with an operation, they
would generally kidnap the target and kill them in another location. Id. Depending the message
their commanders wanted to send, they would either cause the body to disappear or leave it to be
found. Id. It was common practice to take the victim's ID card as proof of the mission's
completion. Id. The most common signature of an execution is a gunshot wound to the victim's
head. Id.
Mr. Ortega also relied on massacre statistics published by the National Center for Historical
Memory, an agency of the Colombian government. Id. at 17. Of the 1982 massacres documented
in all of Colombia between 1980 and 2012, 1166 were committed by the paramilitaries, 343 by the
guerrillas, 158 by the Colombian military, and 295 which remained unsolved. Id. Between 1981
and 2012, 16,346 incidents of selective assassination produced 23,161 victims, of which 8,903
(38%) were committed by paramilitaries, 3,899 (16.8%) by the guerrillas, 6,406 (27.7% ) by
unknown groups, 2,339 (10.1%) by the Colombian military, 1,511 (6.5%) by unknown individuals,
and the remainder committed by other groups or by more than one group. Id. In Mr. Ortega's
opinion, the figures 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 these crimes were committed by the group in control. Id. The Defendant made no
10
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1. Doe 378
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. Ortega Report at 10. The victim worked on several
banana farms 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
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. Id. The murder was witnessed by
several people including a woman who observed the murder from the balcony of her home, and
told the details to the plaintiff. Id. Significantly, 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
7
Documentary evidence of the murder in case Doe 378 is filed under seal as Sealed Exhibit 5 to
DE 2325. English translations are filed under seal as Sealed Exhibit 6. This includes the victim's
death certificate (WOLF000105), a letter from Medicina Legal, the national forensic agency
(WOLF000106), a letter from the prosecutor's office (WOLF000107), a sworn declaration
regarding family relations (WOLF000111), another letter from the prosecutor's office
(WOLF000114), a letter from Acción Sociál, the USAID-sponsored relief agency for war crimes
victims (WOLF000117-119), a letter from the Unidad para la Atencion y Reparacion Integral a las
Victimas (WOLF000120), another letter from Accion Social (WOLF000121) and a signed and
stamped request from the victim for benefits from Accion Social (WOLF000122). These
documents were translated into English by Bert Ortiz, who is licensed by the Colombian Ministry
of Exterior Relations to translate legal documents. Excerpts from the deposition of Doe 368 were
previously filed under seal as Sealed Exhbit 3 to Opposition to Defendants' Motion to Preclude
Continued Use of Pseudonyms. DE 2276. Although the Plaintiff did describe the incident in her
11
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2. Doe 840
The victim was taken from his home and murdered in 2001. Ortega Report, DE 2329 at
13. At around 3:30 AM, five armed men arrived at victim’s home, kidnapped him, and shot him
four blocks away. Id. The family of about eight people were home and saw the abduction. Id.
They did not see the murder, but heard the shots and then found the body. Id. The victim was a
professional soldier in the Colombian army. Id. This murder occurred in Apartado at a time when
The plaintiff recognized one of the men who abducted the victim, and named him in her
deposition. See Transcript Excerpts, filed under seal as DE 2274 at 45. She stated that he is a
known AUC commander and is in prison for another murder. Id. Another five members of the
plaintiffs' family were also killed, and two were raped. She believes that all these crimes were
committed by the AUC. Id. The plaintiff was recognized as a victim by Accion Social. Id.8
Evid. Advisory Committee's note to 2000 Amendments. A witness can be an expert based on
deposition, in this excerpt she only describes the danger of participating in this lawsuit, and her
interaction with Acción Social and the Commission of Justice and Peace. Id.
8
Documentary evidence of the murder of Doe 840 is filed under seal as Sealed Exhibit 7 to DE
2325. English translations are filed under seal as Sealed Exhibit 8. This includes the victim's death
certificate (WOLF000310), a letter from Accion Social (WOLF000314), another letter from
Accion Social (WOLF000315), a letter from the prosecutor's office (WOLF000317), as letter from
the Commission of Justice and Peace (WOLF000318-319), and the victim's birth certificate
(WOLF000325). In addtion, the birth certificate of the plaintiff's daughter, of the plaintiff, and of
her spouse, although they are not Bates-numbered. These documents have also been translated into
English by Bert Ortiz, licensed by the Colombian Ministry of Exterior Relations to translate legal
documents, in Exhibit 8. Excerpts from the deposition of Doe 840 were previously filed under seal
as Sealed Exhbit 1 to Opposition to Defendants' Motion to Preclude Continued Use of
Pseudonyms. DE 2274 She saw the victim's abduction and named one of the perpetrators. Id. at
45. She also testified that numerous other family members had been murdered and raped by the
AUC. Id. at 16. On August 24, 2018, Plaintiff Doe 840 died of natural causes. She had been
deposed in Fort Lauderdale, FL on September 28, 2017.
12
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experience alone, but the district court must "require an experiential witness to 'explain how [his]
experience leads to the conclusion reached, why [his] experience is a sufficient basis for the
opinion, and how [his] experience is reliably applied to the facts.'" United States v. Wilson, 484
R.3d 267, 274 (4th Cir. 2007) (quoting Fed. R. Evid. 702 advisory committee's note to 2000
amendments)
The Defendant's argument appears to be that Mr. Ortega didn't verify the facts of the cases
himself. DE 2521 at 20. However, under Fed. R. Evid. 703, an expert may base an opinion on
facts or data in the case that the expert has been made aware of or personally observed. Id. If
experts in the particular field would reasonably rely on those kinds of facts or data in forming an
opinion on the subject, they need not be admissible for the opinion to be admitted. Id. Notably,
Plaintiffs Opposition to Defendant's Motion for Summary Judgment is based on facts as interpreted
by Mr. Ortega, which doesn't depend on the admissibility of any Colombian government
documents.
As he stated in his expert report, he formed his opinions based on his training and
experience investigating terrorism, Kidnapping/murders, and Drugs over the course of his career
as a Special Agent in the FBI and as a private consultant. DE 2329 at 6. That is, he looked at the
evidence, including the background of the conflict in the Uraba region, the modus operandi of the
AUC, and drew reasonable inferences from his interviews with the plaintiffs and the documents
D. Mr. Ortega reliably applied the principles and methods to the facts of the
cases.
Mr. Ortega applied the principles and methods he learned from working for the FBI, which
are the same ones he used during his career to solve kidnappings and murders committed by other
Colombian drug traffickers and terrorists, including members of the FARC and AUC. The Court
13
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shouldn't conflate his reasonable inferences with improper speculation. Seamon v. Remington
Arms, 813 F.3d 983, 989 (11th Cir. 2016). See Adams v. Lab. Corp. of Am., 760 F.3d 1322, 1328-
29 (11th Cir. 2014) (holding that it was manifestly erroneous for the district court to exclude an
expert on the basis that her opinion was “an ipse dixit assessment,” when the record was to the
contrary); United States v. Alabama Power Co., 730 F.3d 1278, 1284-88 (11th Cir. 2013) (holding
that the exclusion of an expert was an abuse of discretion because the district court
mischaracterized the evidence supporting the expert’s opinion); United Fire & Cas. Co. v.
Whirlpool Corp., 704 F.3d 1338, 1341-42 (11th Cir. 2013) (reversing the exclusion of a portion of
an expert’s testimony because the district court had failed to consider the evidence supporting that
opinion).
Conclusion
It's within the Court's discretion whether to decide Defendant's Daubert challenge to
Plaintiffs expert witness Manuel Ortega, or to leave the decision for the transferor Court. The
Plaintiffs have no objection if this Court wants to decide this. Mr. Ortega analyzed these
kidnappings and murders using the same methods he learned and used to investigate similar crimes
as a Special Agent of the FBI in working in Colombia. For the foregoing reasons, the Court should
Respectfully submitted,
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Certificate of Service
I hereby certify that on this 1st day of September, 2019, I filed the foregoing document
with the cleark of the Court using the Court's Elexctronic Filing (ECF) system, which will send
electronic notices to all persons entitled to receive them.
15