Eleventh Circuit Holds That District Court Erred in Excluding Evidence of Colombian Prosecution Documents in Torture Victim Protection Act Case

In Does 1 Through 976 v. Chiquita Brands Int’l, Inc., No. 19-13926 (11th Cir. Sept. 6, 2022), the Eleventh Circuit substantially reverses summary judgment in a dozen bellwether cases against Chiquita Brands International, Inc. and a host of other defendants brought under the Torture Victim Protection Act, 28 U.S.C. § 1350 note, and Colombian law. In the course of ruling, the panel rules on hearsay issues related to the admissibility of foreign government documents.

Plaintiffs alleged that “[b]etween 1997 and 2004, Chiquita Brands International paid over $1.7 million to the AUC, a paramilitary group designated as a foreign terrorist organization by the United States Secretary of State. During this time, Colombia was in the midst of a civil war between paramilitary groups, like the AUC, and guerillas.” AUC “well known for perpetrating violence not just against guerrilla fighters, but also against innocent civilians.” Plaintiffs “alleg[ed] that the defendants’ financial support of the AUC led to the group’s murder of their family members and loved ones.”

In granting summary judgment on all claims, the district court “ruled that (1) the plaintiffs’ documentary evidence was comprised mostly of inadmissible hearsay, ‘and even if accepted for its substantive content, [would not] support the inferences urged by [the p]laintiffs’; [and] (2) the testimonial evidence constituted inadmissible hearsay, and the plaintiffs did not lay the foundation for any hearsay exceptions.”

The Eleventh Circuit reverses on many of the claims, and in so ruling addresses hearsay and other objections to documents and testimony originating from Colombia.

1. A foreign indictment (the “Hasbún indictment”) is admissible under Fed. R. Evid. 803(6) as “business records” and 803(8) as “public records.” “The Hasbún indictment is admissible as a business record under Rule 803(6). The district court was concerned with the plaintiffs’ purported failure to have a proper, qualified witness to testify to the foundational facts under Rule 803(6). Mr. Sánchez León, however, demonstrated in his declaration that he is a sufficiently qualified witness to lay the necessary foundation . . . . He is a Colombian lawyer and the Director of the International Human Rights Clinic at the University of Virginia School of Law. And he is “deeply familiar” with the Justice and Peace process through which the Hasbún indictment was prepared, as well as the legal framework behind it.” The indictment was also admissible as a public record: “Mr. Sánchez León stated that persons making false confessions are subject to perjury charges in Colombia, and prosecutors must corroborate a confession through an independent investigation. These matters tend to show that the indictment is trustworthy absent evidence to the contrary from the defendants.”

2. Five prosecutors’ letters are admissible as Rule 803(8) public records. “[T]he district court cited no basis for its implied doubt that the Colombian officials had utilized legally authorized investigations to reach the factual findings discussed in the letters. As far as we can tell from the record, there is no basis for such doubt. The plaintiffs explained that the letters came from Colombian officials involved with the Justice and Peace process, and public records from other countries can be admitted under Rule 803(8).”

3. The district court also erred in holding that the above documents had to be authenticated at the summary judgment stage under Fed. R. Evid. 902(3). At summary judgment “[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Thus “[a]t summary judgment, it was enough that ‘the evidence could ultimately be presented in an admissible form.’ . . . . Furthermore, there is no requirement that the plaintiffs specify the individuals and officials who would provide the certifications. It was sufficient that the plaintiffs identified the procedure by which they would certify the documents and make them admissible. See Fed. R. Civ. P. 56, advisory committee note, 2010 Amendment subdivision (c).

4. The panel affims the exclusion of Colombian criminal convictions (sentencias) under Fed. R. Evid. 803(22), the hearsay exception for “final judgment[s] of conviction.” “[T]he district court properly concluded that the sentencia was inadmissible for lack of adjudicative findings. Although the plaintiffs argue that the sentencia is admissible as a final judgment of conviction under Rule 803(22), the excerpts submitted to the district court surprisingly did not contain [the] actual conviction.”

5. Foreign testimony was admissible under Fed. R. Evid. 804(b)(3), the hearsay exception for statements against interest. “A reasonable person would realize that, by explaining why a crime was committed, a declarant who is questioned implies that he personally participated in or was involved in that crime. By answering John Doe 7’s question in the way he did, Mr. Camacho implied or suggested that he was involved in John Doe 8’s murder. His statement was therefore against his penal interest . . . . John Doe 7 sufficiently explained his basis for believing that Mr. Camacho was an AUC commander. And because Mr. Camacho’s statement to John Doe 7 is admissible under Rule 804(b)(3) as a statement against interest, the district court erred in excluding it.”

6. Nevertheless, the testimony of an alleged confession by AUC leader José Lugo Mangones was properly excluded because the plaintiff “did not show that Mr. Mangones was unavailable as required by Rule 804(b)(3) . . . . The only support she provided was the fact that Mr. Mangones was in custody in Colombia and that she had obtained and sent the 2015 Letters of Request to the Colombian government. Juana Doe 11 says that she did ‘everything possible’ so that the Colombian authorities would schedule the deposition quickly, and that she had no control over their actions and did not know why they did not move expeditiously. But she provided no testimonial or documentary evidence regarding her communications with the Colombian authorities or any other efforts she made in order to procure Mr. Mangones’ testimony—other than that she was granted the Letters of Request in the district court—before the discovery cutoff. And that was insufficient.”

Finally, the panel affirmed exclusion of evidence under an excited-utterance exception, Fed. R. Evid. 803(2), for lack of evidence of the circumstances and timing of the statements, and ordered admission of plaintiffs’ expert testimony.

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: