Does 1 Through 976 v. Chiquita Brands International, Inc.

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-13926
____________________
ANTONIO GONZALEZ CARRIZOSA, et al.,
Plaintiffs,
DOE 378,
LUDY RIVAS BORJA, as daughter and successor
to DOE 840 (deceased),
ANA OFELIA TORRES TORRES,
PASTORA DURANGO,
GLORIA EUGENIA MUNOZ,
JOSE LOPEZ 339,
JUANA DOE 11 and MINOR DOE 11A,
JUANA PEREZ 43A,
JANE DOE 7,
JOHN DOE 7, individually and as representative
of his deceased son JOHN DOE 8,
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2 Opinion of the Court 19-13926
JUVENAL ENRIGUE FONTALVO CAMARGO,
NANCY MORA LUMUS,
SARA MATILDE MANJARRES,
Plaintiffs-Appellants
Cross-Appellees,
versus
CHIQUITA BRANDS INTERNATIONAL, INC.,
Defendant-Appellee
Cross-Appellant,
CHIQUITA FRESH NORTH AMERICA LLC.,
a Delaware Corporation, et al.,
Defendants,
KEITH E. LINDNER,
CHARLES KEISER,
CARLA A. HILLS, as representative of the Estate
of RODERICK M. HILLS, SR.,
CYRUS FRIEDMAN,
ROBERT F. KISTINGER,
ROBERT W. OLSON,
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19-13926 Opinion of the Court 3
WILLIAM A. TSACALIS,
Defendants-Appellees
Cross-Appellants.
DOES 1 THROUGH 976, et al.,
Plaintiffs,
DOE 378,
LUDY RIVAS BORJA as daughter and successor
to DOE 840 (deceased),
Plaintiffs-Appellants,
Cross-Appellees.
____________________
Appeals from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:08-md-01916-KAM
____________________
Before JORDAN, NEWSOM, and ED CARNES, Circuit Judges.
JORDAN, Circuit Judge:
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4 Opinion of the Court 19-13926
This appeal arises from a massive and complex multi-district
litigation proceeding based on claims—brought in part under the
Torture Victim Protection Act, 28 U.S.C. § 1350 note, and Colom-
bian law—that Chiquita Brands International and some of its exec-
utives provided financial support to the Autodefensas Unidas de
Colombia, which murdered thousands of persons in Colombia. In
a dozen bellwether cases, the district court issued a comprehensive
order granting summary judgment in favor of the defendants. Af-
ter excluding some of the plaintiffs’ evidence, the court ultimately
concluded that the plaintiffs “fail[ed] to identify any admissible ev-
idence” in support of their allegations that the AUC had killed their
respective decedents. See D.E. 2551 at 71.
On appeal, the plaintiffs argue that the district court abused
its discretion in excluding much of their evidence and that genuine
issues of material fact precluded summary judgment on their
claims. The individual defendants cross-appeal (1) the order deny-
ing their motion to dismiss the plaintiffs’ TVPA claims, and (2) the
ruling that one individual defendant, Carla Hills (as personal repre-
sentative of the Estate of Roderick Hills), waived her personal ju-
risdiction argument. As to the TVPA claims, the individual defend-
ants argue that the allegations in the complaint were insufficient
under Rule 12(b)(6). Ms. Hills, for her part, contends that she
timely raised her personal jurisdiction objection.
Following oral argument and a review of the extensive rec-
ord, we affirm in part, vacate in part, reverse in part, and dismiss in
part. With respect to the evidentiary rulings, we conclude that the
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19-13926 Opinion of the Court 5
district court got some right and some wrong. As to the merits, we
hold that most of the bellwether plaintiffs presented sufficient evi-
dence to withstand summary judgment with respect to whether
the AUC was responsible for the deaths of their decedents. On the
cross-appeals, we do not reach the arguments presented by the in-
dividual defendants and Ms. Hills. 1
I2
Between 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. “[T]he
AUC was closely aligned—and even intertwined—with the Colom-
bian [government] through its ideologies and practices that re-
volved around their shared goals of eliminating the ‘subversive’
threat posed by guerrilla groups.” D.E. 2346-5 at 1. See also D.E.
2346-1 at 2. The AUC “controll[ed] territory by terror,” App. 8531,
and was well known for perpetrating violence not just against
1 We thank the district court for its extensive work and thorough opinion in
this complex MDL proceeding.
2 Inciting to the voluminous record, we refer to docket entries wherever pos-
sible, but occasionally cite to the appendices filed by the plaintiffs. Although
the plaintiffs filed certain documents under seal, they have referred to and
quoted from several of those sealed documents in their publicly-filed briefs.
So we, too, use those portions of the sealed filings to the extent we find it
necessary.
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6 Opinion of the Court 19-13926
guerrilla fighters, but also against innocent civilians. See D.E. 2346-
1 at 2; D.E. 2348-4 at 19–20.
Eventually, the United States learned of Chiquita’s pay-
ments to the AUC and charged the company with engaging in
transactions with a specially-designated global terrorist organiza-
tion. Chiquita pled guilty to the charge in 2007. See Plea Agree-
ment, D.E. 11, United States v. Chiquita Brands Int’l, Case No. 07-
CR-00055-RCL (D.D.C. Mar. 19, 2007).
In response, many people who suspected the AUC of killing
their family members and loved ones sued a number of defendants,
including Chiquita and some of its executives. As relevant here,
the bellwether plaintiffs asserted tort claims under Colombian law
and federal claims under the Torture Victim Protection Act, 28
U.S.C. § 1350 note, alleging that the defendants’ financial support
of the AUC led to the group’s murder of their family members and
loved ones. The plaintiffs conceded that to prevail on their claims
they had to “show, as a factual predicate for all of their claims, that
the AUC was responsible for the murder of each decedent.” D.E.
2551 at 4. 3
3 With respect to Chiquita, the only bellwether claims left are those brought
under Colombian law. See In re Chiquita Brands Int’l, Inc. Derivative Litig.,
2019 WL 11497632, at *2 (S.D. Fla. Sept. 5, 2019). See also Mohamad v. Pales-
tinian Auth., 566 U.S. 449, 461 (2012) (holding that the TVPA “did not extend
liability to organizations, sovereign or not”); Cardona v. Chiquita Brands Int’l,
Inc., 760 F.3d 1185, 1188–89 (11th Cir. 2014) (dismissing similar claims against
Chiquita under the TVPA and the Alien Tort Statute, 28 U.S.C. § 1350).
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19-13926 Opinion of the Court 7
An MDL panel consolidated the plaintiffs’ cases for pretrial
proceedings in the Southern District of Florida. A dozen of those
cases were then selected as bellwether cases. As relevant here, the
district court denied the individual defendants’ motion to dismiss
the TVPA claims and ruled that Ms. Hill had waived her personal
jurisdiction argument.
Chiquita and the individual defendants then moved for sum-
mary judgment on multiple grounds. The district court concluded
that the plaintiffs had not presented sufficient admissible evidence
demonstrating that the AUC was involved in the death of their fam-
ily members and loved ones and therefore could not show the ex-
istence of a genuine issue of material fact for an essential element
of their claims.
The district court therefore granted summary judgment in
favor of all the defendants with respect to the claims of the bell-
wether plaintiffs. It ruled that (1) the plaintiffs’ documentary evi-
dence was comprised mostly of inadmissible hearsay, “and even if
accepted for its substantive content, [would not] support the infer-
ences urged by [the p]laintiffs”; (2) the testimonial evidence consti-
tuted inadmissible hearsay, and the plaintiffs did not lay the foun-
dation for any hearsay exceptions; (3) the “circumstantial evidence,
standing alone, [was] too speculative to support a reasonable infer-
ence that the AUC more likely than not was responsible for the
death of each bellwether victim, and would be insufficient to with-
stand a directed verdict at trial”; and (4) the ultimate expert opin-
ions regarding AUC involvement in the deaths of the bellwether
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8 Opinion of the Court 19-13926
decedents were inadmissible under Federal Rule of Evidence 702
in part because they “[did] not involve the application of reliable
methodologies or principles.” D.E. 2551 at 71. Based on these de-
terminations, the court concluded that the plaintiffs could not
withstand summary judgment on their claims because they did not
have “any admissible evidence supporting their foundational alle-
gation that the AUC killed their decedents.” Id. 4
II
Two sets of bellwether plaintiffs—whom we’ll call the Wolf
plaintiffs (based on the name of their attorney) and the Non-Wolf
plaintiffs where necessary—challenge a number of evidentiary rul-
ings by the district court. We generally review those rulings for an
abuse of discretion. See Fid. Interior Constr., Inc. v. S.E. Carpen-
ters Reg’l Council, 675 F.3d 1250, 1258 (11th Cir. 2012). “[T]he
abuse of discretion standard allows ‘a range of choice for the district
court, so long as that choice does not constitute a clear error of
judgment.’” United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir.
2004) (en banc) (quoting In re Rasbury, 24 F.3d 159, 168 (11th Cir.
1994)). A district court “necessarily abuse[s] its discretion” if it ba-
ses a ruling “on an erroneous view of the law” or “on a clearly er-
roneous assessment of the evidence.” Cooter & Gell v. Hartmarx
Corp., 496 U.S. 384, 405 (1990). So when we conclude that the
4 The district court entered partial final judgment pursuant to Rule 54(b) in
favor of the defendants as to the bellwether plaintiffs’ claims under Colombian
law and the TVPA.
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19-13926 Opinion of the Court 9
district court erred, we mean to say that the district court abused
its discretion in one of these ways.
With this standard in mind, we turn to the contested eviden-
tiary rulings. 5
A
The Non-Wolf plaintiffs argued below that several pieces of
evidence—the indictment of AUC leader Raúl Hasbún and several
letters from Colombian prosecutors—were admissible under the
business record and public record exceptions to the hearsay rule.
See Fed. R. Evid. 803(6), 803(8). The Wolf plaintiffs made the same
argument as to certain letters from prosecutors. The district court
excluded the evidence from both sets of plaintiffs. We conclude
that the Hasbún indictment was admissible under both exceptions,
that the Non-Wolf plaintiffs’ letters must be reconsidered under
Rule 803(8) on remand, and that the Wolf plaintiffs’ letters were
properly excluded.
A document is admissible as a business record under Rule
803(6) if (1) it was made at or near the time of an event by someone
with knowledge, (2) it was kept in the regular course of business,
(3) it was the organization’s regular practice to make such a record,
(4) a qualified witness is able to testify to these facts, and (5) the
opponent of the document does not show a lack of
5Some of the challenged evidentiary rulings are subject to plenary review.
Where that is the case, we note the different standard in the text.
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10 Opinion of the Court 19-13926
trustworthiness. See Fed. R. Evid. 803(6); Equity Lifestyle Props.,
Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232, 1243
(11th Cir. 2009). “The touchstone of admissibility under [Rule
803(6)] is reliability[.]” United States v. Bueno-Sierra, 99 F.3d 375,
378 (11th Cir. 1996).
Under Rule 803(8), a document is admissible in a civil case
as a public record if it is “[a] record or statement of a public office”
that “sets out . . . factual findings from a legally authorized investi-
gation[,] and . . . the opponent does not show that the source of
information or other circumstances indicate a lack of trustworthi-
ness.” Fed. R. Evid. 803(8)(A)(iii), 803(8)(B). “[P]ortions of investi-
gatory reports otherwise admissible under [the public-records ex-
ception] are not inadmissible merely because they state a conclu-
sion or opinion.” Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 170
(1988). And “[n]o distinction is drawn between federal and non-
federal records—the sole criterion is whether the record is that of
a ‘public office.’” 5 Jack B. Weinstein & Margaret A. Berger, Wein-
stein’s Fed. Evid. § 803.10[1] (2d ed. 2022).
Significantly, only minimal foundational testimony is re-
quired in order to admit public records under Rule 803(8). See
United States v. Loyola-Dominguez, 125 F.3d 1315, 1318 (9th Cir.
1997) (“[T]he public records exception is one of the few hearsay
exceptions that does not require a foundation.”); 5 Weinstein’s Fed.
Evid. at § 803.10[2] (“Since the assurances of accuracy are generally
greater for public records than for regular business records, the pro-
ponent is usually not required to establish their admissibility
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19-13926 Opinion of the Court 11
through foundation testimony.”). Moreover, the party attempting
to admit the evidence does not need to establish that the report is
trustworthy; “[t]he burden is on the party opposing admission to
prove the report’s untrustworthiness.” Crawford v. ITW Food
Equip. Grp., LLC, 977 F.3d 1331, 1347 (11th Cir. 2020) (citation
omitted). This is because of the “reliability gained from regularly
conducted activities generally,” the “assumption that a public offi-
cial will perform his duty properly[,] and the unlikelihood that he
will remember details independently of the record.” United States
v. Garland, 991 F.2d 328, 335 (6th Cir. 1993) (quotation marks omit-
ted).
1
Four of the plaintiffs—Ana Ofelia Torres Torres, Gloria Eu-
genia Muñoz, Pastora Durango, and John Doe 7—submitted an ex-
cerpt of the Colombian indictment of AUC leader Raúl Hasbún
(sometimes referred to by the parties as Record 138). See D.E.
2346-78. Appended to the indictment was a chart listing multiple
homicides associated with Mr. Hasbún. 6
The district court excluded the Hasbún indictment, ruling
that the document did not satisfy either Rule 803(6) or Rule 803(8).
The court explained that the indictment was not admissible as a
business record because it did not contain the custodian’s
6The chart included the decedents of these four plaintiffs. Those decedents
are Ceferino Antonio Restrepo Tangarife, Miguel Angel Cardona Muñoz,
Waynesty Machado Durango, and John Doe 8.
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testimony or a certification indicating that perjury would result in
criminal liability in Colombia. And it was not admissible as a public
record because the plaintiffs “[did] not demonstrate that th[e] doc-
ument set[ ] out a ‘matter observed while under a legal duty,’ nor
[did] it appear that th[e] document set[ ] out factual findings based
on a legally authorized investigation.” D.E. 2551 at 32.
In order to lay the foundation for the admissibility of the
Hasbún indictment, the plaintiffs presented the declaration of Nel-
son Camilo Sánchez León, a Colombian lawyer and the Director
of the International Human Rights Clinic at the University of Vir-
ginia School of Law. See D.E. 2510-1. His declaration detailed the
procedures of the Justice and Peace process under Colombian law,
and attached a translated copy of the Justice and Peace Act as an
exhibit.
Mr. Sánchez León stated that the “objective of the Justice
and Peace Process is to guarantee victims’ rights to truth, justice,
and reparation.” Id. at ¶ 9. In furtherance of that goal, the Justice
and Peace Act incentivizes “demobilized” paramilitary group
members to truthfully confess to crimes committed during their
time as paramilitaries by offering “alternative lesser penalties” in
exchange. See id. at ¶ 10. As part of this process, both the executive
and judicial branches in Colombia carry out independent investiga-
tions to corroborate any confession made by a paramilitary partic-
ipant. A special prosecutorial body—the Justice and Peace Unit of
the Colombian Office of the Public Prosecutor—undertakes these
investigations and preserves all records. A paramilitary participant
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who is found to have lied can be subject to criminal proceedings
for having given false testimony. These penalties may be imposed
on a paramilitary participant for either “fail[ing] to confess to a
crime” he committed or for “confess[ing] to a crime that [he] did
not in fact commit.” Id. at ¶ 19. 7
With respect to the Hasbún indictment, Mr. Sánchez León
said the following. First, the homicides listed in the chart appended
to the indictment were murders to which Mr. Hasbún had con-
fessed during an earlier phase of the Justice and Peace process. Sec-
ond, “[a]ny acts to which the paramilitary [participant] does not ac-
cept responsibility cannot be processed through Justice and Peace.”
Id. at ¶ 34 (citing Justice and Peace Act, art. 21). Third, a prosecutor
cannot charge a paramilitary participant based solely on his confes-
sion; the prosecutor must “undertake ‘serious and exhaustive in-
vestigations’ to verify the truth of those confessions.” Id. at ¶ 22
(footnote omitted).
The district court excluded Mr. Sánchez León’s declaration
from the summary judgment record because it was untimely filed,
and thus did not consider it “in [its] assessment of the sufficiency of
[the plaintiffs’] proofs on causation.” D.E. 2551 at 31. The court
also concluded that, even if accepted, the declaration “does not
7For additional background on the Justice and Peace Act, see, e.g., Courtney
Hillebrecht et al., The Judicialization of Peace, 59 Harv. Int’l L.J. 279 (2018),
and José E. Arvelo, International Law and Conflict Resolution in Colombia:
Balancing Peace and Justice in the Paramilitary Demobilization Process, 37
Geo. J. Int’l L. 411 (2006).
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14 Opinion of the Court 19-13926
supply a foundation for admission of the proffered Colombian gov-
ernment records under the hearsay exceptions advanced by [the
plaintiffs].” Id. 8
We first address the timeliness of the Sánchez León declara-
tion. The plaintiffs filed the declaration in support of their court-
ordered supplemental brief on hearsay challenges. See D.E. 2499,
2510. The plaintiffs were responding to the argument made by the
defendants in their summary judgment reply that certain evidence
was inadmissible on hearsay grounds. The defendants had not pre-
viously challenged the plaintiffs’ evidence on those grounds, so the
supplemental brief was the plaintiffs’ first opportunity to respond
to the objection. See generally 4 Christopher B. Mueller et al., Fed.
Evid. § 8:64 (4th ed. & 2021 update) (noting that Rule 802’s bar
against hearsay “is not self-executing” and “requires a timely objec-
tion”).
Our cases recognize “the importance of giving the non-
movant a meaningful opportunity to respond to a motion for sum-
mary judgment.” Burns v. Gadsden State Cmty. Coll., 908 F.2d
1512, 1516 (11th Cir. 1990). As the Seventh Circuit has put it,
“[d]istrict courts abuse their discretion when they deny a party a
chance to respond to new arguments or facts raised for the first
time in a reply brief in support of a motion for summary judgment
8 Despiteexcluding the declaration, the district court seemingly relied on Mr.
Sánchez León’s explanation of the Justice and Peace process in its order. See
D.E. 2551 at 5 n.4.
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and subsequently enter judgment on the basis of those new argu-
ments or facts.” Physicians Healthsource, Inc. v. A-S Medication
Sols., LLC, 950 F.3d 959, 968 (7th Cir. 2020). See also First Specialty
Ins. Corp. v. 633 Partners, Ltd., 300 F. App’x 777, 788 (11th Cir.
2008) (“[A] district court can abuse its discretion by failing to give
the opposing party a chance to respond to materials presented for
the first time in a reply brief and instead granting summary judg-
ment on the basis of that evidence.”).
In this case, the district court abused its discretion in exclud-
ing the Sánchez León declaration on timeliness grounds. In our
view, the plaintiffs timely filed the Sánchez León declaration in re-
sponse to hearsay objections the defendants first raised in their
summary judgment reply. With the benefit of the declaration, we
conclude that the plaintiffs established the foundation for the ad-
missibility of the Hasbún indictment under both Rule 803(6) and
Rule 803(8).
The Hasbún indictment is admissible as a business record
under Rule 803(6). The district court was concerned with the plain-
tiffs’ 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. “A qualified wit-
ness is one who can explain the system of record keeping and
vouch that the requirements of Rule 803(6) are met.” Curtis v. Per-
kins, 781 F.3d 1262, 1268 (11th Cir. 2015) (quoting United States v.
Box, 50 F.3d 345, 356 (5th Cir. 1995)). The witness “need not be
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16 Opinion of the Court 19-13926
the [one] whose first-hand knowledge was the basis of the facts
sought to be proved.” Bueno-Sierra, 99 F.3d at 379. See 5 Wein-
stein’s Fed. Evid. § at 803.08[8][a] (“The phrase [a ‘]qualified wit-
ness’ is given a very broad interpretation. The witness need only
have enough familiarity with the record-keeping system of the en-
tity in question to explain how the record came into existence . . . .
In fact, the witness need not even be an employee of the record-
keeping entity . . . .”). The declaration shows that Mr. Sánchez
León is such a witness. He is a Colombian lawyer and the Director
of the International Human Rights Clinic at the University of Vir-
ginia School of Law. And he is “deeply familiar” with the Justice
and Peace process through which the Hasbún indictment was pre-
pared, as well as the legal framework behind it. See D.E. 2510-1 at
¶ 6.
The Hasbún indictment also meets the requirements of the
public records hearsay exception under Rule 803(8). It sets forth
the findings of the Justice and Peace prosecutors that Mr. Hasbún
was responsible for the listed homicides, which satisfies Rule
803(8)(A)(iii). Mr. Sánchez León stated that persons making false
confessions are subject to perjury charges in Colombia, and prose-
cutors must corroborate a confession through an independent in-
vestigation. These matters tend to show that the indictment is
trustworthy absent evidence to the contrary from the defendants.
Cf. Mike’s Train House, Inc. v. Lionel, LLC, 472 F.3d 398, 412 (6th
Cir. 2006) (“The notices of arrest, Korean complaint, and the inves-
tigative reports are generally admissible under the public-records
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19-13926 Opinion of the Court 17
exception, as set forth in Rule 803(8).”), abrogation recognized as
to another issue in A.K. v. Durham Sch. Servs., L.P., 969 F.3d 625,
630 (6th Cir. 2020).
Because the Hasbún indictment is admissible as both a busi-
ness record and a public record, the district court erred in excluding
it. 9
2
John Doe 7, Juvenal Fontalvo Camargo, Juana Pérez 43A,
and Juana Doe 11 and Minor Doe 11A submitted various letters by
Colombian prosecutors and investigators from the Justice and
Peace process. The letters offered by Juvenal Fontalvo Camargo,
Juana Pérez 43A, and Juana Doe 11 and Minor Doe 11A discussed
the process with respect to AUC leader José Lugo Mangones (also
called El Tijeras). John Doe 7’s letter discussed Mr. Hasbún’s pro-
ceedings in the Justice and Peace process. We summarize the let-
ters below.
♦ The letter offered by Mr. Camargo, from a criminal
investigator, stated that Mr. Mangones “accepted his
participation in the homicide” of the decedent and
listed the possible dates on which he would be in-
dicted in the Court of Justice and Peace. See D.E.
2346-60.
9Given our ruling, the plaintiffs’ motion to supplement the appellate record
and/or for judicial notice as to the Hasbún indictment is denied as moot.
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18 Opinion of the Court 19-13926
♦ The first Juana Pérez 43A letter, from a prosecutor,
stated that Mr. Mangones confessed to the homicide
of the decedent; that charges were filed against him;
that the magistrate “ordered a measure of preventa-
tive detention against” Mr. Mangones because of the
homicide; that the criminal charges “were con-
firmed”; that a “sentence judgment” was issued; that
the judge “ruled in favor of the victims” as to dam-
ages; and that there was an appeal. See D.E. 2346-50.
The letter also stated that the decedent’s “homicide”
was “attributable to members of the extinct northern
block of the William Rivas Front of the AUC.” Id.♦ The second Juana Pérez 43A letter, also from a pros-
ecutor and in response to the plaintiffs’ request for a
copy of the Mangones judgment, confirmed that
Mr. Mangones had accepted responsibility for the de-
cedent’s homicide and repeated the timeline of his
case. See D.E. 2346-77.
♦ The letter offered by Juana Doe 11 and Minor Doe
11A, from the Government Attorney’s Office, at-
tached a video of Mr. Mangones’ confession “regard-
ing” the decedent’s homicide. See D.E. 2346-75.
♦ The letter offered by John Doe 7, from the Assistant
to the Attorney General, stated that the matter of the
decedent’s homicide was being heard in the Court of
Justice and Peace, that the homicide was attributed to
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the AUC, that Mr. Hasbún was presumed responsi-
ble, and that Mr. Hasbún had agreed to the circum-
stances of the homicide. See D.E. 2348-129 at 35–38.
The plaintiffs argued below that these letters from Colom-
bian prosecutors and investigators were admissible as business rec-
ords under Rule 803(6) or as public records under Rule 803(8). The
district court ruled that the letters were not admissible on either
basis. On appeal, the plaintiffs challenge only the public records
ruling.
The district court concluded that the letters were not admis-
sible as public records because “no information [was] given as to
how the prosecutors gathered the information, or from what
sources that information was derived. Without knowing where or
how the prosecutors obtained the information recited in [the let-
ters], or anything about the procedures and methods actually used
to reach the stated conclusions in the specific investigations at
hand,” the court said it could not conclude that Rule 803(8) was
satisfied. See D.E. 2551 at 34. 10
A document is admissible as a public record if it sets out ei-
ther “a matter observed while under a legal duty to report” or “fac-
tual findings from a legally authorized investigation,” and the
10 The district court quoted an earlier version of Rule 803(8) which required
that “neither the source of the information nor other circumstances indicate a
lack of trustworthiness.” D.E. 2551 at 34. As noted earlier, the current and
applicable version requires that the opponent show untrustworthiness.
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20 Opinion of the Court 19-13926
opponent has not shown “that the source of information or other
circumstances indicate a lack of trustworthiness.” Fed. R. Evid.
803(8). We conclude that the district court erred in ruling that the
letters were not admissible under Rule 803(8).
The district court did not consider whether the letters de-
scribed “a matter observed while under a legal duty to report” or
“factual findings from a legally authorized investigation” under
Rule 803(8) because it found that it could not determine whether
those requirements were satisfied due to its own lack of knowledge
regarding the “procedures and methods” used in the investigations.
See D.E. 2551 at 34. The court cited cases where evidence was ex-
cluded because either (1) little to no information was provided or
known about the investigation or source of the evidence, or
(2) there was positive evidence of the document’s untrustworthi-
ness. See Gilmore v. Palestinian Interim Self-Gov’t Auth., 843 F.3d
958, 969–70 (D.C. Cir. 2016) (affirming the district court’s exclusion
of web pages because the “[a]ppellants rested on a bare, one-sen-
tence assertion that [they] were admissible under Rule 803(8), but
offered no further explication” of how the evidentiary require-
ments were satisfied); United States v. El-Mezain, 664 F.3d 467,
497–501 (5th Cir. 2011) (holding that documents seized from the
Palestinian Authority in a military operation should have been ex-
cluded because they did not meet the trustworthiness require-
ments of Rule 807, as “there is nothing known about the circum-
stances under which the documents were created,” including
“whether the documents were created by some third person or
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19-13926 Opinion of the Court 21
agency and were merely collected . . . as intelligence” and “in the
case of two of the documents, the identities of the authors”); Gill
v. Arab Bank, PLC, 893 F. Supp. 2d 542, 571 (E.D.N.Y. 2012) (hold-
ing that certain reports by an alleged terrorist were not admissible
because they were “based directly on [the alleged terrorist’s] relay-
ing of information of uncertain provenance” and hearsay within
hearsay); Mamani v. Berzain, 309 F. Supp. 3d 1274, 1297 (S.D. Fla.
2018) (excluding certain military and police reports because they
contained hearsay).
The letters here, however, did not have the problems iden-
tified in the cited cases. And the district court cited no basis for its
implied doubt that the Colombian officials had utilized legally au-
thorized 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 Co-
lombian officials involved with the Justice and Peace process, and
public records from other countries can be admitted under Rule
803(8). See, e.g., United States v. Mena, 863 F.2d 1522, 1531 (11th
Cir. 1989) (admitting a Honduran document). Indeed, the court
acknowledged that the letters were correspondence “issued by Co-
lombian prosecutors, excerpted from Justice and Peace Law files.”
D.E. 2551 at 33–34. The letters were signed and written on official
letterhead, and the defendants haven’t demonstrated that the let-
ters or the information in them was untrustworthy. Cf. Mamani,
309 F. Supp. 3d at 1295–96 (ruling that a “final” report prepared by
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22 Opinion of the Court 19-13926
Bolivian prosecutors with respect to extrajudicial killings was ad-
missible under Rule 803(8)).
A decision can constitute an abuse of discretion when it is
based upon “considerations having little factual support.” Arlook
v. S. Lichtenberg & Co., 952 F.2d 367, 374 (11th Cir. 1992). The
district court here did not have evidence that the proffered letters
were untrustworthy. Because the court held that it was “unable to
conclude” whether the letters satisfied either of Rule 803(8)’s initial
requirements due to its unsupported skepticism about the Colom-
bian investigations, it did not address those requirements. See D.E.
2551 at 34. We remand so that it may do so.11
3
Doe 378 (sometimes referred to as María Dolores Roldán de
Echavarria) also submitted a letter from a prosecutor’s office. This
letter, unlike the other letters discussed above, briefly described a
homicide in which the victim died from gunshot wounds but did
not name the perpetrator of the homicide. We agree with the dis-
trict court that this letter was not admissible.
11 Based on our remand, we deny as moot the plaintiffs’ motion to supplement
the appellate record and/or for judicial notice as to the letters from the Justice
and Peace prosecutors. And we express no view on whether the references to
Mr. Mangones’ confession in some of the letters present a hearsay-within-
hearsay issue. Cf. United Techs. Corp. v. Mazer, 556 F.3d 1260, 1278 (11th
Cir. 2009) (“[P]lacing otherwise inadmissible hearsay statements by third-par-
ties into a government report does not make the statements admissible.”).
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19-13926 Opinion of the Court 23
Like the other plaintiffs with letters from prosecutors and
investigators, Doe 378 argued below that her letter was admissible
as a business record under Rule 803(6) or as a public record under
Rule 803(8). The district court grouped her letter with all of the
other letters from prosecutors and ruled that none of them were
admissible on either ground. The court concluded that the letter
was not admissible as a business record “because the record does
not contain testimony by a custodian of the documents, or other
qualified person, nor do [the plaintiffs] alternatively produce a cer-
tification showing that the letters were signed in [a] manner that, if
falsely made, would subject the maker to criminal liability in Co-
lombia.” D.E. 2551 at 35 (cleaned up). Though the other plaintiffs
do not contest the court’s ruling as to Rule 803(6), Doe 378 does.
She argues that her letter was admissible as a business record.
The district court did not err in ruling that Doe 378’s letter
from the prosecutor’s office was not admissible as a business rec-
ord. Doe 378 contends on appeal that she satisfies Rule 803(6)’s
fourth requirement because she “could introduce . . . correspond-
ence from various offices using retired employees of those offices.”
Wolf Plaintiffs’ Initial Br. at 44. Presumably Doe 378 is referring to
retired prosecutors and other Colombian officials, but even assum-
ing that this argument was preserved below, her hypothetical and
vague statement is not sufficient to satisfy the fourth requirement
of Rule 803(6) and make the letter admissible. See United States v.
Dickerson, 248 F.3d 1036, 1048 (11th Cir. 2001) (because the gov-
ernment failed to present a custodian or qualified witness, the
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24 Opinion of the Court 19-13926
district court abused its discretion in admitting certain business rec-
ords under Rule 803(6)); Mamani, 309 F. Supp. 3d at 1296–97 (ex-
cluding foreign military and government reports under Rule 803(6)
because the plaintiffs did not submit the affidavit of a custodian or
other qualified witness). Although a hearsay statement can be con-
sidered at summary judgment if it can be reduced to admissible ev-
idence at trial, the “possibility that unknown witnesses will emerge
to provide testimony . . . is insufficient to establish that the hearsay
statement could be reduced to admissible evidence at trial.” Jones
v. UPS Ground Freight, 683 F.3d 1283, 1294 (11th Cir. 2012).
4
For the first time in her reply brief, Doe 378 argues that two
new letters, as well as the letter described above, should be admit-
ted as public records under Rule 803(8). See Wolf Plaintiffs’ Reply
Br. at 20. She “adopt[s] by reference” the public records argument
made by the other plaintiffs in their own initial brief and declines
to discuss the exception (or even summarize the argument) herself.
See id. By raising her Rule 803(8) argument in a cursory fashion,
and only in her reply brief, she has abandoned this contention. We
therefore do not address it. See United States v. Thomas, 242 F.3d
1028, 1033 (11th Cir. 2001).
B
The district court ruled that the Hasbún indictment and all
of the prosecutor letters submitted by the Non-Wolf plaintiffs were
not self-authenticating. They were also not presumptively
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19-13926 Opinion of the Court 25
authentic, or shown by the plaintiffs to be reducible to an admissi-
ble form. See D.E. 2551 at 39–42. The plaintiffs argue that the doc-
uments can be authenticated and therefore reduced to an admissi-
ble form by the time of trial, and that the defendants only objected
on the ground that the documents were not yet authenticated. See
Non-Wolf Plaintiffs’ Initial Br. at 57–59. We conclude that the
plaintiffs showed that the documents could be reduced to an ad-
missible form at trial and that they should have been considered at
summary judgment.12
At summary judgment “[a] party may object that the mate-
rial 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).
Nevertheless, evidence that can be reduced to an admissible form
at trial should be considered at summary judgment. See Smith v.
Marcus & Millichap, Inc., 991 F.3d 1145, 1156 n.2 (11th Cir. 2021)
(“[E]vidence does not have to be authenticated or otherwise pre-
sented in an admissible form to be considered at the summary judg-
ment stage, as long as the evidence could ultimately be presented
in an admissible form.”) (quotation marks omitted).
Foreign public documents are self-authenticating if they
“purport[ ] to be signed or attested by a person who is authorized
12The district court also ruled that the Mangones sentencia and the Rendón
Herrera judgment were not properly authenticated. Because we conclude in
Part II.C that those documents were not admissible, we do not consider their
authenticity here.
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26 Opinion of the Court 19-13926
by a foreign country’s law to do so” and are “accompanied by a
final certification that certifies the genuineness of the signature and
official position of the signer or attester” or of a relevant foreign
official. See Fed. R. Evid. 902(3). “The certification may be made
by a secretary of a United States embassy or legation; by a consul
general, vice consul, or consular agent of the United States; or by a
diplomatic or consular official of the foreign country assigned or
accredited to the United States.” Id. Alternatively, “[i]f all parties
have been given a reasonable opportunity to investigate the docu-
ment’s authenticity and accuracy, the court may, for good cause,
either (A) order that it be treated as presumptively authentic with-
out final certification; or (B) allow it to be evidenced by an attested
summary with or without final certification.” Id.Under the Federal Rules of Evidence, authenticity involves
a two-step process.
A district court must first make a preliminary assess-
ment of authenticity, which requires [the] proponent
to make out a prima facie case that the proffered evi-
dence is what it purports to be. If the proponent sat-
isfies this “prima facie burden,” the inquiry proceeds
to a second step, in which the evidence may be admit-
ted, and the ultimate question of authenticity is then
decided by the factfinder.
PDVSA US Litig. Tr. v. Lukoil Pan Ams., LLC, 991 F.3d 1187, 1191
(11th Cir. 2021) (internal quotation marks and citation omitted).
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19-13926 Opinion of the Court 27
The district court ruled that the Hasbún indictment and the
prosecutor letters were not properly authenticated because they
were not self-authenticating, did not fall under the good cause al-
ternative, and the plaintiffs did not identify how they would obtain
the required authentication documents prior to trial. The court
noted that the plaintiffs conceded that the documents did not yet
have a final certification required to be self-authenticating. It also
concluded that the plaintiffs had not shown good cause for the lack
of final certification. The court acknowledged that the plaintiffs
stated that they “intend[ed], before trial, to obtain certified copies
of the correspondence from the emitting agency” and apostilles
from the Colombian consulate in the United States regarding the
letters and the Hasbún indictment. See D.E. 2551 at 40. 13
But the district court faulted the plaintiffs for not specifying
the particular people or officials from whom they expected to ob-
tain the certified copies and apostilles, and for not showing that the
13
“An ‘apostille’ is an international method for verification of foreign docu-
ments similar to notarization.” Corovic v. Mukasey, 519 F.3d 90, 93 n.2 (2d
Cir. 2008). See Fed. R. Civ. P. 44, advisory committee note, 1991 Amendment
(“The Hague Public Documents Convention provides that the requirement of
a final certification is abolished and replaced with a model apostille, which is
to be issued by officials of the country where the records are located. . . . [T]he
apostille can be accorded greater weight than the normal authentication pro-
cedure because foreign officials are more likely to know the precise capacity
under their law of the attesting officer than would an American official.”).
Given our ruling, we deny as moot the Non-Wolf plaintiffs’ motion for judicial
notice of authenticating apostilles.
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28 Opinion of the Court 19-13926
certifications were missing despite the plaintiffs’ reasonable efforts
to secure them. The court was “mystif[ied]” as to why the plaintiffs
had not yet secured the final certifications when they had several
years to do so. See id. 14
Although the district court’s frustration was understandable,
the documents did not—despite the long lead-up to summary judg-
ment—need to have final certifications. See Marcus & Millichap,
Inc., 991 F.3d at 1156 n.2 (at a preliminary stage, “the evidence need
not be authenticated to be considered—instead, it need only be ca-
pable of authentication”). At summary judgment, it was enough
that “the evidence could ultimately be presented in an admissible
form.” Id.
Furthermore, there is no requirement that the plaintiffs
specify the individuals and officials who would provide the certifi-
cations. It was sufficient that the plaintiffs identified the procedure
by which they would certify the documents and make them admis-
sible. See Fed. R. Civ. P. 56, advisory committee note, 2010
Amendment subdivision (c) (“The burden is on the proponent to
show that the material is admissible as presented or to explain the
admissible form that is anticipated.”) (emphasis added). And they
14 The district court found that the prosecutor letters were signed, but it is
unclear whether it also concluded that the Hasbún indictment met the re-
quirement that it be signed by an authorized person. See D.E. 2551 at 39–42.
In any event, we conclude that the indictment was also signed as required. See
D.E. 2346-78 at 21–23. See also D.E. 2551 at 39 (acknowledging that the Span-
ish version of the indictment had signatures).
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19-13926 Opinion of the Court 29
did that, setting out the specific agencies and entities which would
provide the necessary certifications. See D.E. 2551 at 40 (“As to the
letters allegedly issued by Colombian prosecutors, [the p]laintiffs
state that they intend, before trial, to obtain certified copies of the
correspondence from the emitting agency (either the Public Prose-
cutor or the Center for Judicial Administration), as a precursor to
seeking an apostille, and that they ‘will obtain an apostille for all
(Justice and Peace Law) documents from the Colombian consulate
in the United States’ prior to trial.”) (cleaned up).
C
The plaintiffs submitted two different documents purport-
ing to be convictions of AUC members in the Justice and Peace
process—the Mangones sentencia and the Rendón Herrera “First
Instance Judgment”—as final judgments of conviction under Rule
803(22). We conclude that the district court correctly excluded
both documents, although for different reasons.
As noted, the Justice and Peace process was one in which the
Justice and Peace Unit of the Colombian Office of the Public Pros-
ecutor investigated offenses allegedly committed by paramilitary
participants, and in which AUC members could truthfully confess
to crimes in order to receive sentences that were lower than they
would otherwise be in the ordinary Colombian criminal system.
See D.E. 2551 at 5 n.4 (citing to the Sánchez León declaration).
Judgments issued as a part of the proceedings were the equivalent
to a criminal conviction in the usual system. See id. See also Ar-
velo, 37 Geo. J. Int’l L. at 438 (discussing how, in the Justice and
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30 Opinion of the Court 19-13926
Peace process, “the demobilized combatant is subject to a special
expedited procedure through which he or she is prosecuted and
sentenced for the crimes committed”).
Rule 803(22) provides for the admissibility of “a final judg-
ment of conviction” if the judgment satisfies certain criteria. As
relevant here, those criteria are that “the judgment was entered af-
ter a trial or guilty plea,” “the conviction was for a crime punishable
by death or by imprisonment for more than a year,” and “the evi-
dence is admitted to prove any fact essential to the judgment.” Fed.
R. Evid. 803(22)(A)–(C). Rule 803(22) “has been applied to admit
evidence of foreign criminal judgments,” and the “pendency of an
appeal . . . does not affect admissibility.” 5 Weinstein’s Fed. Evid.
at § 803.24[1]–[2].
1
Several of the plaintiffs—Juvenal Fontalvo Camargo, Juana
Doe 11, Minor Doe 11A, and Juana Pérez 43A—submitted the sen-
tencia of Mr. Mangones to support their cases. The sentencia,
which is over a thousand pages long, is a judgment of conviction
against Mr. Mangones entered on July 31, 2015, in the Superior
Court of Bogota, Justice and Peace Division. The district court
ruled that the Mangones sentencia was not admissible for two rea-
sons.
First, the district court found that the excerpts of the senten-
cia provided were too vague and that the plaintiffs failed to provide
enough context for how the Colombian Justice and Peace
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19-13926 Opinion of the Court 31
proceedings functioned. As a result, it was “impossible” to deter-
mine “whether the charges hinged on the geographical situs of the
crimes or specific subordinate activity.” D.E. 2551 at 37–38. The
court seemed to doubt that the “charges were predicated on crimes
actually committed by subordinates under [Mr.] Mangones’ com-
mand” rather than “simply by persons committing murders in ter-
ritories under [Mr.] Mangones’ command.” Id. Therefore, the
court could not determine “whether an AUC-based killing was a
‘fact essential’” to the sentencia—a question which has to be an-
swered in the affirmative for the document to satisfy the Rule
803(22) hearsay exception. See id. at 35–38.
Second, the district court found that “at best” the sentencia
showed that Mr. Mangones “was charged with the homicide of
John Doe 11.” Id. at 38–39. It said the excerpts included contained
no adjudicative findings by the tribunal as to any other specific
homicide. The court reasoned that it could not “reasonably be in-
ferred” by the sentencia or anything else in the summary judgment
record that Mr. Mangones confessed to being responsible for the
homicides listed in the sentencia. See id.
The district court mistakenly concluded that the sentencia
was not admissible due to its own inability to determine whether
the document concerned homicides by AUC members. The
court’s speculation about how the charges were brought disre-
garded the stated purpose of the Justice and Peace process, which
as relevant here was to establish the responsibility of AUC mem-
bers for certain crimes—a purpose the court seemingly accepted.
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32 Opinion of the Court 19-13926
See D.E. 2551 at 5 n.4. The court did not cite any source for its
uncertainty, other than a few vaguely worded sentences in the sen-
tencia. This basis for exclusion was therefore mistaken. See Ar-
look, 952 F.2d at 374.
But the 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 dis-
trict court surprisingly did not contain Mr. Mangones’ actual con-
viction. Significantly, the excerpts discussed his charges, rather
than his conviction on those charges. Indeed, the plaintiffs concede
in their brief that they did “not submit th[e] portion of the judg-
ment” with the adjudicative findings below. See Non-Wolf Plain-
tiffs’ Initial Br. at 45–46. 15
The plaintiffs argue that the other portions of the sentencia
were not submitted to the district court only because the defend-
ants first made the relevant hearsay argument in their supple-
mental response, to which they could not respond. The record,
however, indicates that the plaintiffs were able to respond. Three
weeks after the defendants filed their supplemental response, the
plaintiffs submitted a motion in limine that discussed the admissi-
bility of the sentencia but made no reference to the defendants’
15
In addition, the table of contents of the sentencia indicated that some of the
charges against Mr. Mangones were withdrawn by the government or dis-
missed by the court. See D.E. 2346-72 at 2.
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19-13926 Opinion of the Court 33
hearsay argument. Maybe recognizing this reality, the plaintiffs
now ask that we take judicial notice of the full content of the sen-
tencia. We deny that request because “the taking of judicial notice
of facts is, as a matter of evidence law, a highly limited process”;
granting it here would “bypass[ ] the safeguards which are involved
with the usual process of proving facts by competent evidence in
district court.” Shahar v. Bowers, 120 F.3d 211, 214 (11th Cir. 1997)
(en banc).
Moreover, “[w]e cannot find an abuse of discretion based on
our consideration of new evidence—evidence never considered by
the [district] court . . . —on appeal.” United States v. Barton, 909
F.3d 1323, 1335 (11th Cir. 2018). See also Chapman v. AI Transp.,
229 F.3d 1012, 1026 (11th Cir. 2000) (en banc) (“The rule is that a
federal appellate court may examine only the evidence which was
before the district court when the latter decided the motion for
summary judgment.”) (quotation marks omitted). “Parties oppos-
ing summary judgment are appropriately charged with the respon-
sibility of marshaling and presenting their evidence before sum-
mary judgment is granted, not afterwards.” Id. at 1027.
2
The seven surviving children of José López 339 submitted
an excerpt of the “First Instance Judgment” issued by the Superior
Court of Medellin against Fredy Rendón Herrera for the murders
of several individuals carried out by AUC members. The district
court excluded this excerpt, and we conclude that it didn’t abuse its
discretion in doing so.
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34 Opinion of the Court 19-13926
The district court explained that, based on the excerpt, it
could not determine whether the “First Instance Judgment” was a
“final” judgment, as required for admissibility under Rule 803(22).
The court also stated that it was unable to determine “whether an
AUC-based killing was a ‘fact essential’” to the judgment because
the plaintiffs “[did] not clearly show how command responsibility
was assessed in the context of Colombian Justice and Peace Law
proceedings.” D.E. 2551 at 38. Finally, the court noted that the
excerpt stated only that Mr. Rendón Herrera “was charged with
the homicide of José López 339,” but did not state that he was held
“liab[le]” for it. See id. at 38–39. The excerpt did not contain adju-
dicative findings, and it could not be inferred from the face of the
excerpt that Mr. Rendón Herrera confessed to responsibility for the
homicides charged. See id. at 39. Thus, the court concluded that
the excerpt was not admissible under Rule 803(22).
On this record, we cannot say that the district court abused
its discretion in excluding the excerpt of the Rendón Herrera “First
Instance Judgment.” As the proponents of the evidence, the plain-
tiffs bore the burden of establishing that the judgment was admis-
sible under a hearsay exception. See generally United States v. Ken-
nard, 472 F.3d 851, 855–56 (11th Cir. 2006). The excerpt submitted
to the court did not provide all of the requisite foundational infor-
mation, and the plaintiffs failed to show that the document would
be admissible at trial. The plaintiffs did not, for example, provide
the court with translated portions of the document definitively
showing that Mr. Rendón Herrera was convicted of the murder of
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19-13926 Opinion of the Court 35
José López 339. Without such information, the plaintiffs failed to
meet their burden of establishing the document’s admissibility.
D
Several plaintiffs argue that certain testimony should have
been admitted under Rule 804(b)(3), the hearsay exception for
statements against interest. We conclude that the testimony of
John Doe 7 and José López 339’s seven children should have been
admitted, but that the testimony of Juana Doe 11 and Juana Pérez
43A was properly excluded.
Rule 804(b)(3) allows the admission of a statement, where
the declarant is unavailable, that “a reasonable person in the declar-
ant’s position would have made only if the person believed it to be
true because, when made, it . . . had so great a tendency . . . to ex-
pose the declarant to civil or criminal liability.” Whether a “state-
ment is self-inculpatory or not can only be determined by viewing
it in context. Even statements that are on their face neutral may
actually be against the declarant’s interest.” Williamson v. United
States, 512 U.S. 594, 603 (1994). Because we “do not read Rule
804(b)(3) to be limited to direct confessions of guilt,” statements
against interest include remarks that a reasonable person would
have realized “strongly implied [the declarant’s] personal participa-
tion” in the relevant crime. See United States v. Thomas, 571 F.2d
285, 288–89 (5th Cir. 1978) (quotation marks omitted). In fact, Rule
804(b)(3) “encompasses disserving statements by a declarant that
would have probative value in a trial against the declarant.” Id. at
288. Although the question of “whether a statement is against the
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36 Opinion of the Court 19-13926
declarant’s penal interest is purely a question of law subject to de
novo review, consideration of a statement’s trustworthiness re-
quires a review of findings of fact and . . . of the [district] court’s
application of a legal standard to the facts.” United States v.
Westry, 524 F.3d 1198, 1215 (11th Cir. 2008) (citation omitted).
For Rule 804(b)(3) to apply, the declarant must be unavaila-
ble as a witness. See United States v. Costa, 31 F.3d 1073, 1077
(11th Cir. 1994). A declarant is unavailable if he “is absent from the
trial or hearing and the statement’s proponent has not been able,
by process or other reasonable means, to procure . . . the declar-
ant’s attendance or testimony.” Fed. R. Evid. 804(a)(5)(B).
“Whether a declarant is unavailable as a witness under Rule 804(a)
is a question of law that we review de novo.” Lamonica v. Safe
Hurricane Shutters, Inc., 711 F.3d 1299, 1317 (11th Cir. 2013).
The burden of proving that the declarant is unavailable is on
the statement’s proponent. See id. The proponent must show that
she exercised effort through process or reasonable means to at-
tempt to locate the declarant and persuade him to come testify. See
United States v. Samaniego, 345 F.3d 1280, 1283 (11th Cir. 2003)
(holding that the proponent established that the declarant was un-
available through the testimony of his sister and mother, who ex-
plained that they tried and failed to contact him). That “foreign
nationals located outside the United States are beyond the sub-
poena power of the district court,” id. (cleaned up), does not mean
that a proponent of the statement can do nothing to procure the
declarant’s attendance or testimony. See United States v. Curbello,
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19-13926 Opinion of the Court 37
940 F.2d 1503, 1506–07 (11th Cir. 1991) (holding that the declarants,
who were in a Bahamian jail, were not properly considered una-
vailable when the statements’ proponent had not attempted to
make them available).
A district court has discretion to “accept statements of par-
ties or counsel as to unavailability of witnesses as a predicate to the
use of depositions,” Castilleja v. S. Pac. Co., 445 F.2d 183, 186 (5th
Cir. 1971), but it need not do so. And we have held that “counsel’s
uncorroborated statement” as to the reason for the declarant’s un-
availability is not sufficient on its own to satisfy the proponent’s
burden. See United States v. Acosta, 769 F.2d 721, 723 (11th Cir.
1985).
1
John Doe 7 is the father of John Doe 8, one of the decedents.
John Doe 7 testified that a now-deceased AUC commander, Gil-
berto Camacho, made statements that incriminated himself and
the AUC in the murder of John Doe 8. Specifically, John Doe 7
testified that when he confronted Mr. Camacho fifteen days after
his son’s death, Mr. Camacho did not deny killing his son. Instead,
when John Doe 7 asked Mr. Camacho why he killed his son, Mr.
Camacho answered that his son “was full of vices,” such as smok-
ing and drugs. See Non-Wolf Plaintiffs’ Initial Br. at 72–73 (quoting
D.E. 2348-50 at 12).
The district court excluded this testimony because it found
that John Doe 7 did not provide evidence that Mr. Camacho’s
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38 Opinion of the Court 19-13926
statement linked John Doe 8’s murder to the AUC. The court ex-
plained that Mr. Camacho did not “take responsibility” for the mur-
der or attribute it to an AUC operative, so his statement did not
qualify as a statement against penal interest under Rule 804(b)(3).
See D.E. 2551 at 59. The court emphasized that although John Doe
7 testified that Mr. Camacho was an AUC leader he “did not explain
a basis for this belief, based on personal knowledge,” nor did he
“identify a source of evidence in the record establishing an affilia-
tion between [Mr.] Camacho and the AUC.” Id.We conclude that the district court erred in ruling that the
statement to John Doe 7 was not against Mr. Camacho’s penal in-
terest. 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 an-
swering 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. See
Thomas, 571 F.2d at 288–89 (holding that a witness’ statement that
the defendant “didn’t have anything to do with [the robbery]” and
should be let go was against the witness’ penal interest).
The district court also erred in concluding that John Doe 7
did not sufficiently explain the basis for his belief that Mr. Camacho
was affiliated with the AUC. The affidavit which John Doe 7 filed
under seal, and to which the district court referred, contains more
than simply a “suggesti[on]” that the AUC was active in the rele-
vant community and recognizable by its weapons. See D.E. 2551
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19-13926 Opinion of the Court 39
at 59. In his affidavit, John Doe 7 explained that he knew Mr.
Camacho was an AUC member because they had worked together
before and because Mr. Camacho went, armed, to local meetings
run by self-proclaimed AUC members. See Non-Wolf Plaintiffs’
Initial Br. at 75 (discussing D.E. 2348-129). For the purposes of ad-
missibility, these facts provide a sufficient basis for John Doe 7’s
belief.
In sum, John Doe 7 sufficiently explained his basis for believ-
ing 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.
2
Juana Doe 11 also argues that her own testimony should not
have been excluded. She testified that she heard an AUC com-
mander, Mr. Mangones, confess to killing her husband via the au-
dio given to her by the state attorney on CD. She also attended
Mr. Mangones’ hearing and personally asked him if he had killed
her husband. Mr. Mangones responded by confessing to the mur-
der. See D.E. 2348-38 at 57. On this record, we conclude that the
district court did not err.
The district court ruled that this testimony was inadmissible
because Juana Doe 11 did not show that Mr. Mangones was una-
vailable as required by Rule 804(b)(3). The court found that her
statement that the Colombian government did not allow Mr.
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40 Opinion of the Court 19-13926
Mangones to be deposed until March of 2019 was not sufficient to
show that he was unavailable. The deposition never took place
because the discovery cut-off date was October 18, 2018, and the
court ordered that the scheduled deposition be cancelled.
In its order, the district court discussed the discovery history
of the case as it related to Mr. Mangones to further explain its deci-
sion. In December of 2014, the plaintiffs filed an emergency mo-
tion to take Mr. Mangones’ deposition (as well as the depositions
of two other paramilitary members who were also in custody in
Colombia). The court first granted the motion and issued Letters
of Request pursuant to the Hague Evidence Convention in March
of 2015, and then in a requested modified form in April of 2015. In
June of 2018, the plaintiffs asked for a second set of Letters of Re-
quest because the Colombian government never produced Mr.
Mangones and had returned the 2015 Letters of Request. Juana
Doe 11 said that it was “unclear” why the Colombian authorities
responded as they did, but the court faulted her for not explaining
what she was doing to solve the problem and depose Mr. Man-
gones between April of 2015 and June of 2018. The court noted
that if the delay had been a strategic decision by Juana Doe 11 (be-
cause of Mr. Mangones’ potential status as a “tainted” witness due
to alleged “corruption and collusion” with an attorney in a “witness
payment scandal”), then Mr. Mangones was not unavailable.
The district court did not err in concluding that Juana Doe
11 failed to show that Mr. Mangones was unavailable under Rule
804(a). The only support she provided was the fact that Mr.
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19-13926 Opinion of the Court 41
Mangones was in custody in Colombia and that she had obtained
and sent the 2015 Letters of Request to the Colombian govern-
ment.
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 testi-
monial 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. See Acosta, 769 F.2d
at 723 (holding that counsel’s uncorroborated statements about un-
availability were not sufficient, by themselves, to show that the
witness was unavailable). See also Reese v. Cnty. of Sacramento,
888 F.3d 1030, 1048 (9th Cir. 2018) (explaining that unavailability
cannot be established by asserting that “counsel made reasonable,
good faith efforts to procure the witness’s presence” if she “fail[s]
to explain what those efforts were” and lacks “any evidence of ac-
tual reasonable, good faith efforts”).
We recognize that litigants in the United States have no con-
trol over whether and when foreign governments will permit dep-
ositions of incarcerated individuals. And we might have viewed
the situation here differently if there was some evidence that Juana
Doe 11 or her counsel had followed up with the Colombian
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42 Opinion of the Court 19-13926
authorities in 2016, 2017, or 2018 to find out what was going on.
Unfortunately for Juana Doe 11, the record is silent on this score.
3
Juana Pérez 43A also submitted her own testimony. She tes-
tified that she learned that Mr. Mangones confessed to being re-
sponsible for her son’s death. But she admitted that Mr. Mangones
was not present when she learned of his confession. Although she
had seen Mr. Mangones at a hearing, she did not recall anything he
said at that hearing.16
The district court excluded this testimony for two reasons.
First, Juana Pérez 43A did not show that Mr. Mangones was una-
vailable within the meaning of Rule 804(a)(5). Second, she was not
competent to testify as to Mr. Mangones’ confession because she
did not personally hear it.
As with Juana Doe 11, the district court did not err in ruling
that Juana Pérez 43A did not establish that Mr. Mangones was un-
available under Rule 804(a)(5). Nor did the court err in excluding
her testimony about the confession. She was not competent to
16Although Juana Pérez 43A argues that she attended the hearing where Mr.
Mangones took responsibility for killing her son, she admits that her “testi-
mony on this point is ambiguous.” Non-Wolf Plaintiffs’ Initial Br. at 96–97.
Nevertheless, she asserts that the district court erred in not drawing the rea-
sonable inference that she was present. We disagree because she explicitly
stated that Mr. Mangones was not present when she was at the Justice and
Peace hearing and that that is where she learned of his confession.
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19-13926 Opinion of the Court 43
testify about the content of the confession because her testimony
was not based on personal knowledge. See Fed. R. Evid. 602; Cor-
win v. Walt Disney Co., 475 F.3d 1239, 1250 (11th Cir. 2007). 17
4
The seven children of decedent José López 339 contend that
Mr. Rendón Herrera, the AUC leader responsible for their father’s
death, personally apologized to them for the murder. See D.E.
2511-1 at 16. Two months after their father’s death, the family was
summoned to a meeting with an AUC commander. See D.E. 2348-
94 at 16–17. Mr. Rendón Herrera had called the meeting to ask for
the children’s forgiveness for the murder of their father. Id. He
told them that he had killed their father based on mistaken infor-
mation. See id. at 17–18.
In supplemental briefing ordered by the district court, the
children argued that Mr. Rendón Herrera’s out-of-court statement
was admissible as a statement against penal interest under Rule
804(b)(3). To that end, they asserted that Mr. Rendón Herrera was
unavailable because they had been unable to procure his deposition
by “reasonable means.” See Fed. R. Evid. 804(a)(5).
The district court determined that Rule 804(b)(3) was inap-
plicable because the children had failed to show that Mr. Rendón
17Juana Pérez 43A also testified that, on the morning of her son’s murder, she
noticed a young man following him to work and heard shots. The district
court did not address this portion of her testimony, so we assume it was not
excluded.
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44 Opinion of the Court 19-13926
Herrera was unavailable. The court also excluded his “alleged con-
fession” because it “[did] not create a triable issue of fact on the
identify of José López 339’s killers.” D.E. 2551 at 58.
Courts require a “bona fide effort[ ] to obtain” the appear-
ance or testimony of a witness. See 30B Jeffrey Bellin, Fed. Prac. &
Proc.: Evid. at § 6968 (2022). If a witness resides in another coun-
try, one “reasonable solution” is to seek his deposition. See United
States v. Kelly, 892 F.2d 255, 262 (11th Cir. 1989). As we explain,
the district court abused its discretion in excluding the children’s
testimony because the plaintiffs had, in fact, attempted but twice
failed to depose Mr. Rendón Herrera in Colombia.
Pursuant to Letters of Request issued under the Hague Evi-
dence Convention, the plaintiffs were permitted to schedule two
depositions of Mr. Rendón Herrera. The first deposition was
scheduled while he was still in prison. The plaintiffs’ counsel trav-
eled to Colombia and appeared at the scheduled deposition. Mr.
Rendón Herrera, however, had been released from prison two
weeks before the deposition, sent his attorney to the wrong court,
and did not appear. See D.E. 1798 at 8; D.E. 2346-98 at 17. The
second deposition, also in Colombia, was scheduled after
Mr. Rendón Herrera did not show up for the first, but he also failed
to appear for the second. See D.E. 2551 at 55 n.35 (acknowledging
that Mr. Rendón Herrera twice failed to appear for deposition). So
the plaintiffs were unable to depose Mr. Rendón Herrera despite
having twice scheduled his deposition and traveled to Colombia.
These two failed depositions show that the plaintiffs employed a
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19-13926 Opinion of the Court 45
reasonable means of attempting to procure Mr. Rendón Herrera’s
testimony. These scheduled depositions “constituted a good-faith
effort that was reasonable under the . . . circumstances of this case.”
United States v. Smith, 928 F.3d 1215, 1231 (11th Cir. 2019). Cf.
Samaniego, 345 F.3d at 1283 (“Using the efforts of [the foreign wit-
ness’] sister and mother . . . is a reasonable means of attempting to
locate [the witness] in Panama and persuade him to travel to the
United States to testify.”).
In sum, there was sufficient evidence in the record of Mr.
Rendón Herrera’s unavailability. The district court therefore erred
when it excluded the testimony of José López 339’s children. 18
E
Rule 803(2) permits the introduction of statements “relating
to a startling event or condition, made while the declarant was un-
der the stress of excitement that it caused.” The “basis for the ‘ex-
cited utterance’ exception . . . is that such statements are given un-
der circumstances that eliminate the possibility of fabrication,
coaching, or confabulation.” Idaho v. Wright, 497 U.S. 805, 820
(1990).
While the declarant must still be under the stress or
excitement that the startling event caused, the excited
utterance need not be made contemporaneously to
18To the extent that the district court excluded the testimony because it did
not create a triable issue on the identity of José López 339’s killer, we address
the sufficiency of the evidence in Part III.F.
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46 Opinion of the Court 19-13926
the startling event. It is the totality of the circum-
stances, not simply the length of time that has passed
between the event and the statement, that deter-
mines whether a hearsay statement was an excited ut-
terance.
United States v. Belfast, 611 F.3d 783, 817–18 (11th Cir. 2010) (hold-
ing that the district court did not abuse its discretion in admitting,
as excited utterances, statements made by a person four to five
hours after he was tortured).
Two plaintiffs, Gloria Eugenia Muñoz and Jane Doe 7, argue
that certain evidence was admissible under Rule 803(2)’s hearsay
exception for excited utterances. We conclude that the testimony
offered by Ms. Muñoz and Jane Doe 7 was properly excluded for
various reasons.
1
Ms. Muñoz sought to introduce testimony regarding the cir-
cumstances of the death of her son, Miguel Angel Cardona. At her
deposition, Ms. Muñoz testified that her daughter-in-law, Onelsi
Mejía, told her that two men came into her house and kidnapped
Mr. Cardona (who was then her brother-in-law). See D.E. 2348-36
at 13–14. Ms. Muñoz was not at the house at the time of the kid-
napping, and she did not testify about either the timing of Ms.
Mejía’s statements to her about the abduction or Ms. Mejía’s men-
tal state at the time.
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19-13926 Opinion of the Court 47
The district court excluded Ms. Mejía’s statements to Ms.
Muñoz, finding that there was no temporal link in the record be-
tween when Ms. Mejía witnessed Mr. Cardona’s abduction and
when she told Ms. Muñoz about the abduction. See D.E. 2551 at
49–50. Based on that deficiency, the court stated that there was “no
predicate for admission of the statement [as an excited utterance
under Rule 803(2)] as one made while [Ms. Mejía] ‘was under the
stress of excitement’ caused by the kidnapping.” Id. at 50.
On appeal, Ms. Muñoz does not dispute the district court’s
basis for excluding Ms. Mejía’s statement to her. Rather, she argues
that she “could testify at trial that [Ms. Mejía’s] statements were
excited utterances.” Non-Wolf Plaintiffs’ Initial Br. at 101. The
problem for Ms. Muñoz is that, as the proponent of Ms. Mejía’s
statements, she “ha[d] the burden of demonstrating” that they
were excited utterances. See 5 Weinstein’s Fed. Evid. at
§ 803.04[1]. If Ms. Muñoz had information about the temporal link,
she was required to provide it to demonstrate an excited utterance.
The mere possibility that she could testify at trial and potentially
lay the foundation for the admissibility of Ms. Mejía’s statements
as excited utterances does not demonstrate an abuse of discretion
and is insufficient to defeat a motion for summary judgment. See
Jones, 683 F.3d at 1294 (the possibility that the declarant may testify
differently “amounts only to a suggestion that admissible evidence
might be found in the future, which is not enough to defeat a mo-
tion for summary judgment”) (internal quotation marks and cita-
tion omitted). Given the total lack of evidence in the record
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48 Opinion of the Court 19-13926
regarding the timing and circumstances of Ms. Mejía’s statements
relative to Mr. Cardona’s abduction, the court properly concluded
that the statements were not admissible as excited utterances under
Rule 803(2).
2
Ms. Muñoz also argues that the testimony of her other son,
Roberto Muñoz, should have been admitted as an excited utter-
ance under Rule 803(2). Roberto filed a declaration in which he
admitted that he did not witness his brother’s kidnapping but re-
counted that Ms. Mejía—his wife at the time—had told him she
witnessed the kidnapping. Roberto also stated that he confronted
the two men who Ms. Mejía said kidnapped his brother—El Mue-
lon and El Tripilla—and “asked them what they had done with
[his] brother.” D.E. 2346-106 at 2. Roberto recounted that “[a]t
first they denied that they knew what I was talking about but after
admitting [sic] they had left [my brother] at the entrance of a farm
called La Represa.” Id. He explained that he then found his brother
dead at that farm. See id. He believed that the two men were AUC
members because “[t]hey were recognized by the inhabitants of the
area” and “when they committed crimes [they] identified them-
selves as AUC or paras.” Id.
The district court excluded Roberto’s testimony regarding
Ms. Mejía’s description of the kidnapping. The record did not re-
veal the timing or context of Ms. Mejía’s statements to Roberto,
and as a result there was no basis on which to find that they were
excited utterances under Rule 803(2). The court additionally ruled
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19-13926 Opinion of the Court 49
that, even if the statements were excited utterances, Ms. Mejía’s
identification of the killers was not admissible because it was based
on what “other witnesses” had told her, rather than her own per-
sonal knowledge. It explained that Ms. Mejía’s “state of mind is
only reliable evidence of the truth of what she actually witnessed—
not the names or criminal affiliations of the abductors with whom
she was unfamiliar.” D.E. 2551 at 51. 19
As with Ms. Muñoz, the district court did not err in ruling
that Ms. Mejía’s statements to Roberto were inadmissible as ex-
cited utterances. Simply stated, there was no information as to the
circumstances or timing of Ms. Mejía’s statements relative to the
kidnapping. Thus, we need not and do not address Ms. Mejía’s
identification of the suspected murderers.
As for Roberto’s testimony about his confrontation with El
Muelon and El Tripilla, the district court excluded it because “there
is no admissible evidence from which their alleged AUC affiliation
may reasonably be inferred.” Id. The court found Roberto’s trans-
lated comment that “when they committed crimes [they] identified
themselves as AUC or paras” to be “incomprehensible.” Id. The
court also ruled that his statement that the men were recognized
19 Although Ms. Mejía witnessed the kidnapping, she did not know at the time
who the kidnappers were. She only later came to learn the identity of the
kidnappers, and their status as AUC members, from other witnesses in the
community who identified the men and told her their aliases. See D.E. 2551
at 50 & n.33 (quoting D.E. 2345-106 at 4).
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50 Opinion of the Court 19-13926
by other people in the area was inadmissible because it was not
based on personal knowledge. See id.
Generally, “[a] witness may testify to a matter only if evi-
dence is introduced sufficient to support a finding that the witness
has personal knowledge of the matter.” Fed. R. Evid. 602. Alt-
hough we do not think Roberto’s statement about the confronta-
tion was “incomprehensible,” the district court did not abuse its
discretion in excluding it or the rest of Roberto’s testimony. See
Corwin, 475 F.3d at 1250 (“Because a court is not required to accept
as true testimony that is not based on personal knowledge and be-
cause none of this excluded testimony was based on personal
knowledge, the district court did not abuse its discretion in disre-
garding this testimony.”). The court reasonably concluded that
Roberto did not provide enough information to show that he knew
that the men were AUC members based on his personal
knowledge, rather than what he was told by others. That is partic-
ularly so considering that the full sentence in Roberto’s declaration
alludes to the knowledge of others: “[El Muelon and El Tripilla]
were recognized by the inhabitants of the area, they, [sic] when
they committed crimes identified themselves as AUC or paras.”
D.E. 2346-106 at 2. 20
20 We do not consider whether Roberto’s declaration is admissible under any
other hearsay exception because Ms. Muñoz declines to make any such argu-
ments.
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19-13926 Opinion of the Court 51
3
Jane Doe 7 sought to introduce her deposition and affidavit
testimony, which in summary was as follows. The AUC had a list
with the names of certain banana workers, set up checkpoints near
the banana plantations, and often killed those whose names were
on the list. One night, two coworkers of John Doe 11—Jane Doe
7’s husband—allegedly told him that earlier in the day they had
been stopped at a checkpoint and that his name had been read
aloud. The coworkers also said that the AUC had killed two other
workers who were on the list that day. Before he was killed, John
Doe 11 told Jane Doe 7 all of this. Aside from saying that John Doe
11’s statements to her came “afterwards,” Jane Doe 7 did not spec-
ify how much time elapsed from the time the coworkers spoke to
John Doe 11 to the time he relayed the information to her. Nor did
Jane Doe 7 say anything about John Doe 11’s mental state.
The district court excluded Jane Doe 7’s testimony, conclud-
ing that the statement from John Doe 11 did not qualify as an ex-
cited utterance because the statement was “made at some indeter-
minate point ‘afterwards.’” DE 2551 at 45–46. Based on the record
before us, the court did not abuse its discretion in excluding Jane
Doe 7’s testimony. There are at least two layers of hearsay here—
(1) the statements of John Doe 11’s coworkers to John Doe 11, and
(2) John Doe 11’s statements to Jane Doe 7. See Crawford, 977 F.3d
at 1348 (“If a statement contains multiple levels of hearsay, each
level must satisfy an exception to the hearsay rule.”). Assuming
that the coworkers’ statements to John Doe 11 were excited
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52 Opinion of the Court 19-13926
utterances, there is still a hearsay problem with John Doe 11’s later
statement to Jane Doe 7.
As noted, Rule 803(2) requires that, to qualify as an excited
utterance, a statement be “made while the declarant was under the
stress of excitement” caused by an event or condition. The mere
existence of a stressful event is insufficient; “the declarant must still
be under the stress or excitement that the startling event caused”
when making the statement. See Belfast, 611 F.3d at 817 (emphasis
added). The statement must have been “spontaneous, excited, or
impulsive as required by Rule 803(2) rather than the product of re-
flection and deliberation.” United States v. Lawrence, 699 F.2d 697,
704 (5th Cir. 1983).
We look at the “totality of the circumstances” in order to
determine whether a hearsay statement was an excited utterance.
See Belfast, 611 F.3d at 817. The record here, however, is com-
pletely silent as to whether John Doe 11 was still under the stress
of excitement caused by his coworkers’ statements when he spoke
to Jane Doe 7. As a result, it was not an abuse of discretion for the
district court to exclude Jane Doe 7’s testimony.
F
We now turn to the expert evidence offered by the plaintiffs.
Based on the district court’s order and the parties’ arguments on
appeal, there are three categories of evidence in play: (1) statistical
data relating to AUC/paramilitary patterns of violence in relevant
geographic areas of Colombia; (2) modus operandi evidence,
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19-13926 Opinion of the Court 53
which consists of typical markers or indicators of AUC murders;
and (3) the experts’ ultimate conclusions of AUC involvement/re-
sponsibility in the murders of the bellwether decedents based on
interpretations of relevant evidence.
1
The Wolf plaintiffs and the defendants assume that the dis-
trict court excluded the testimony of the plaintiffs’ experts, Oliver
Kaplan (for the Non-Wolf plaintiffs) and Manuel Ortega (for the
Wolf plaintiffs), in full pursuant to Daubert v. Merrell Dow Phar-
maceuticals, Inc., 509 U.S. 579 (1993). See Wolf Plaintiffs’ Initial
Br. at 21–37; Appellees’ Answer Br. at 41–51. Our review of the
court’s order, however, indicates otherwise. See Non-Wolf Plain-
tiffs’ Initial Br. at 65–71 (asserting that the district court “did not
exclude [Mr.] Kaplan’s evidence and conclusions concerning the
AUC’s activities” but did exclude his ultimate opinion “that the
AUC was ‘more likely than not’ responsible for the deaths of [the]
decedents”).
In its order, the district court separated the expert evidence
and testimony into at least two categories. See D.E. 2551 at 63, 67.
It then treated these categories of evidence differently. Notably,
the order is pretty clear about what was ruled inadmissible, and
much of the evidence the plaintiffs sought to introduce through
their experts was not excluded.
One such category of expert evidence is what the district
court termed “[g]eographical and [t]emporal [e]vidence.” See id.USCA11 Case: 19-13926 Date Filed: 09/06/2022 Page: 54 of 104
54 Opinion of the Court 19-13926
at 63. This evidence consisted of statistical data relating to AUC
and paramilitary patterns of violence in the relevant regions of Co-
lombia, which was compiled by the plaintiffs’ experts. See id. at
63–65.
The district court engaged with this evidence on the merits
and laid it out in detail. See D.E. 2551 at 63–67. After considering
the evidence, the court concluded that it was “simply far too spec-
ulative, standing alone, to permit a reasonable juror to conclude,
more likely than not, that the death of any decedent was linked to
an AUC operation.” Id. at 66. But the court did not state, much
less rule, that any of this geographical and temporal evidence was
inadmissible for one reason or another.
In a separate section of its order, titled “Expert Opinions,”
the district court ruled that the ultimate opinions of both experts
on causation were inadmissible under Rule 702. See id. at 67–68.
It excluded those opinions because “neither [expert was] applying
specialized knowledge or ‘reliable’ methodologies.” Id. at 68. Sig-
nificantly, the court clarified that it was not expressing any opinion
as to the defendants’ hearsay objections to the statistical data (the
geographic and temporal evidence) the experts had compiled and
included in their reports. See id. at 68. See generally Bauman v.
Centex Corp., 611 F.2d 1115, 1120 (5th Cir. 1980) (“The pertinent
inquiry . . . is whether the facts are of a type reasonably relied on
by experts in the particular field.”). We proceed, then, on the un-
derstanding that the statistical data evidence was not excluded at
summary judgment.
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19-13926 Opinion of the Court 55
The district court reasoned that the manner in which the ex-
perts formed their opinions—“simply collect[ing] historical crime
war statistics” as a basis for deducing an AUC connection to the
victims’ deaths—did not satisfy the requirements of the Federal
Rules of Evidence. See D.E. 2551 at 68. “[N]either [expert] applied
‘a reliable methodology’ to form the proffered opinions on the
‘likelihood’ of AUC involvement”; nor did the experts “demon-
strate how their prior experience or ‘specialized knowledge’ was
relevant to the making of the proffered ‘deductions’ on the likeli-
hood of AUC involvement.” Id.2
The principles set out in Daubert apply to soft-science expert
testimony. “Social science testimony, like other expert testimony
. . . , must be tested to be sure that the person possesses genuine
expertise in a field and that her court testimony adheres to the same
standards of intellectual rigor that are demanded in her profes-
sional work.” Tyus v. Urb. Search Mgmt., 102 F.3d 256, 263 (7th
Cir. 1996) (alteration, internal quotation marks, and citation omit-
ted). See also Wessmann v. Gittens, 160 F.3d 790, 805 (1st Cir.
1998) (“When scientists (including social scientists) testify in court,
they must bring the same intellectual rigor to the task that is re-
quired of them in other professional settings.”) (citations omitted).
That said, “social science research, theories[,] and opinions
cannot have the exactness of hard science methodologies,” and
“peer review, publication, error rate, etc. are not applicable to this
kind of testimony, whose reliability depends heavily on the
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56 Opinion of the Court 19-13926
knowledge and experience of the expert.” United States v. Joseph,
542 F.3d 13, 21 (2d Cir. 2008) (alteration, internal quotation marks,
and citations omitted), abrogation recognized as to another issue
in United States v. Waqar, 997 F.3d 481 (2d Cir. 2021). Where
“ideal experimental conditions and controls” are precluded, “other
indicia of reliability are considered under Daubert, including pro-
fessional experience, education, training, and observations.”
United States v. Simmons, 470 F.3d 1115, 1123 (5th Cir. 2006) (cita-
tion omitted). See also United States v. Young, 916 F.3d 368, 380–
81 (4th Cir. 2019) (affirming the admission of expert testimony on
extremist groups based on a “social sciences-based methodology,”
which involved a comparative method which focused on primary
sources and then compared conclusions “against secondary sources
and ‘events on the ground’”); United States v. Hammoud, 381 F.3d
316, 336–38 (4th Cir. 2004) (affirming admission of social science
testimony on Hizballah from an expert who previously worked
with the FBI, and who now worked at a think tank where he spe-
cialized in Middle Eastern terrorist groups), judgment vacated on
other grounds by Hammoud v. United States, 543 U.S. 1097 (2005).
Where appropriate, social science expert testimony can give “the
jury a view of the evidence well beyond their everyday experi-
ence.” Tyus, 102 F.3d at 263.
3
We begin with Mr. Kaplan. Although not dispositive, we
briefly detail his credentials and expertise, which have not been
questioned. Mr. Kaplan is an associate professor at the Josef Korbel
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19-13926 Opinion of the Court 57
School of International Studies at the University of Denver, where
he has lectured since 2012. See D.E. 2348-4 at 4, 54. He is also the
associate director of the Korbel School’s Latin America Center. See
id. at 54. Prior to joining the Korbel School, Mr. Kaplan did post-
doctoral work at Stanford University and Princeton University per-
forming empirical studies of conflict. See id. He “is an expert on
Colombian politics and armed conflict in Colombia.” Id. at 4. He
has visited Colombia between twenty and thirty times, has “con-
ducted extensive fieldwork [there],” and has had that research pub-
lished. See id. at 4; App. 4914. He authored a book titled “Resisting
War: How Communities Protect Themselves,” “which examines
how civilian communities organize to protect themselves from
wartime violence in Colombia and other countries.” Id. He has
also done “a lot of background reading on the country and the con-
flict,” “analyzed a number of different data sets related to Colom-
bia,” and “interviewed people and had informal conversations with
people from the country about the country.” Id. Additionally, he
is part of a “broad[ ] academic community of scholars that work on
Colombia and exchange information . . . [and] research.” Id.
In reaching his opinion, Mr. Kaplan relied on several catego-
ries of information, including (1) the “temporal overlap” of the vi-
olence against bellwether victims and the “general patterns of AUC
violence,” D.E. 2348-4 at 41–42; (2) the consistency of the geo-
graphic patterns of the bellwether victims’ cases compared with the
geographic spread of crimes committed by paramilitary groups, see
id. at 41; and (3) the statistical data regarding killings and massacres
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58 Opinion of the Court 19-13926
in the bellwether victims’ municipalities during the relevant time
period, see id. at 40–41. Using Colombian sources and information,
Mr. Kaplan opined that “almost all (90 percent) of the killings of
civilians in the bellwether victims’ municipalities during the
timeframe of this case were committed by paramilitaries.” Id. at
41. 21
Given the three categories of information summarized
above, the district court excluded Mr. Kaplan’s ultimate opinion.
See D.E. 2551 at 63–69. If that were everything that Mr. Kaplan
had relied on in reaching his opinion, we might have affirmed the
district court’s ruling as not an abuse of discretion. But these three
categories were only a portion of the data and information on
which he relied.
Mr. Kaplan considered and relied on at least three other cat-
egories of information to reach and support his conclusion. First,
he provided a history of the AUC, explained its rise to power, and
detailed the group’s motives and the reasons behind its use of vio-
lence, chosen crimes, and infliction of widespread terror. See D.E.
2348-4 at 7–28. Second, he described the modus operandi of the
AUC, both generally and as it pertained to the bellwether dece-
dents. He stated that the AUC targeted political enemies, banana
workers, and unionists, often using lists of names to identify its
21According to Mr. Kaplan, 6,101 of the 6,792 murders in the decedents’ mu-
nicipalities in the relevant time period were committed by paramilitaries. See
D.E. 2348-4 at 43 & fig. 7.4.
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19-13926 Opinion of the Court 59
victims. See id. at 26. He detailed some of the methods the AUC
used to target and kill victims, including driving white or grey cars,
taking people off of buses, and torturing and decapitating victims.
See id. at 46. Third, Mr. Kaplan corroborated the plaintiffs’ ac-
counts of each of the murders, providing information as set out in
“news sources, NGO reports, paramilitary testimonies . . . , and hu-
man rights violation and armed conflict datasets.” Id. at 47. For
example, as to John Doe 11 Mr. Kaplan verified through a Colom-
bian database that he had been killed in a manner “consistent with
the information registered by [his] family member plaintiffs.” Id.
Specifically, he confirmed that John Doe 11 had been “executed . . .
with four gunshots” “at the urban perimeter of the town center”
by “[p]aramilitaries who covered their faces with ski masks and
[were] riding a high-cylinder motorcycle.” Id.
Using all of that information, Mr. Kaplan opined that
“[m]any if not all of the human rights violations against the bell-
wether victims in this case were caused by the AUC paramilitaries.”
Id. at 52. He expressly stated that his conclusion was “supported
by similar modus operandi, timing and geography, . . . the general
patterns of violence committed by the AUC[,] . . . [and] direct ver-
ification of bellwether victim cases and their details via human
rights violation and conflict databases and paramilitary testimonies
that confess to the murders.” Id.
The Non-Wolf plaintiffs cite to three cases in support of their
argument that the district court erred in excluding Mr. Kaplan’s ul-
timate opinion—Boim v. Holy Foundation for Relief &
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60 Opinion of the Court 19-13926
Development, 549 F.3d 685 (7th Cir. 2008) (en banc); Acosta v. Is-
lamic Republic of Iran, 574 F. Supp. 2d 15 (D.D.C. 2008); and Blais
v. Islamic Republic of Iran, 459 F. Supp. 2d 40 (D.D.C. 2006). These
out-of-circuit cases are not dispositive, but they do address similar
expert testimony.
In Boim, the family of a murder victim sued various entities
alleging that the murder had been committed by Hamas, which
had been aided by the defendants’ support. See 549 F.3d at 687–88.
The expert, hired “[t]o show that the murder of David Boim was
the work of Hamas,” was permitted to opine that the murder had
been committed by members of Hamas based on his review of case
exhibits, independent research, and “knowledge of how Hamas
and other Islamic terror organizations operate.” Id. at 702. The
Seventh Circuit, sitting en banc, concluded that the district court
had not abused its discretion in permitting the expert to testify even
though he may have relied on some inadmissible evidence to reach
his ultimate opinion. See id. at 704–05.
In both district court cases, Acosta and Blais, the plaintiffs’
experts were allowed to opine as to the causal link between the
terrorist group at issue and the defendant(s) in the case, based on
data and information similar to that relied upon by Mr. Kaplan. See
Acosta, 574 F. Supp. 2d at 22–23 (permitting two experts to opine
that Iran had provided support to a particular terrorist organization
“based upon publicly available sources including the State Depart-
ment’s 1992 Patterns of Global Terrorism, . . . and a number of dif-
ferent public articles reporting Iranian training and financial
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19-13926 Opinion of the Court 61
support” of the group during the relevant time period); Blais, 459
F. Supp. 2d at 49 (allowing expert to testify that a particular terrorist
attack would not have happened without Iranian support, an opin-
ion which was based “on publicly available sources that were not
inconsistent with classified information known to him,” including
congressional testimony and “articles published by the Federation
of American Scientists as well as the Free Muslims Coalition”). Alt-
hough none of these cases compel reversal here, they are persua-
sive and lead us to conclude that Mr. Kaplan’s opinion is admissi-
ble. Significantly, the defendants have not cited to any decisions
excluding this type of expert testimony or opinion.
Individually, the additional categories of data and infor-
mation relied on by Mr. Kaplan, which the district court failed to
consider, might not have required reversal under the abuse of dis-
cretion standard. Taken together, however, they provide further
support for Mr. Kaplan’s conclusion and lead us to a different result
concerning admissibility. Given the full universe of information on
which Mr. Kaplan relied, the court abused its discretion in exclud-
ing his opinion. See 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); United
States v. Ala. Power Co., 730 F.3d 1278, 1284–88 (11th Cir. 2013)
(holding that the exclusion of an expert constituted an abuse of dis-
cretion because the district court mischaracterized the evidence
supporting the expert’s opinion).
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62 Opinion of the Court 19-13926
4
We turn next to Mr. Ortega, a former special agent with the
FBI. Prior to his retirement in 2012, he was involved in the FBI’s
investigation of Chiquita’s payments to the AUC. See D.E. 2325-4
at 3. As a special agent, Mr. Ortega “received training on” and in-
vestigated “the identity of groups that conducted kidnapping[s] and
murders of American citizens in Colombia.” Id. He has “signifi-
cant on-the-ground experience in Colombia, having traveled exten-
sively across the country.” Id. at 4. Presently, Mr. Ortega works in
private sector security consulting, which “involves teaching and ad-
vising private clients in Latin American countries how to detect
risks associated with exposure to terrorist groups.” Id. at 5.
Like Mr. Kaplan, Mr. Ortega examined temporal, geograph-
ical, and circumstantial evidence to opine that the violent crimes
committed against the six victims (including the two Wolf plain-
tiffs’ decedents) he was hired to evaluate “were probably all com-
mitted by the paramilitaries.” D.E. 2325-4 at 6. He considered the
locations where the murders took place relative to AUC-controlled
territories, the circumstances of the murders, and the statistics of
murders committed in the Urabá region of Colombia. See id. at 2.
One piece of data was that between 1981 and 2012, 38% of “selec-
tive assassination[s]” in all of Colombia were committed by para-
militaries. See id. at 17. Another was that “[t]he paramilitaries
were responsible for the vast majority of the murders in Urab[á]”
from 1995 to 1997. Id. at 16. The latter statement, however, was
based on a contention by Wolf plaintiffs’ attorney, who told Mr.
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19-13926 Opinion of the Court 63
Ortega that “although he [had] accepted cases of victims of both
the paramilitaries and guerillas for approximately a ten-year period
each, over 90% of the [2,000] cases he investigated were committed
by the paramilitaries.” Id. at 16–17. 22
The record on appeal does not contain an unredacted ver-
sion of Mr. Ortega’s expert report. As such, there is information
and reasoning in it to which we do not have access. It was the Wolf
plaintiffs’ responsibility to perfect the appellate record and ensure
review of the relevant portions of the report. See, e.g., United
States v. Gutierrez, 931 F.2d 1482, 1491 (11th Cir. 1991) (“It is ele-
mentary that appellants must perfect the record so as to support
the issues which they present on appeal.”). The report is labeled as
highly confidential and was filed under seal in the district court, but
the Wolf plaintiffs could and should have filed an unredacted ver-
sion under seal in this court. See 11th Cir. R. 25-3(h), 25-5;
Gutierrez, 931 F.2d at 1491. We would be hard-pressed to reverse
the district court’s rulings regarding Mr. Ortega when nearly half
of his report is unavailable for our review and consideration. For
the sake of completeness, however, we address the arguments of
the Wolf plaintiffs as to admissibility.
Mr. Ortega explained that his methodology consisted of his
“training and experience investigating terrorism,
22 In the portions of Mr. Ortega’s report that we were able to review—more
on that in a moment—there were no other statistics relevant to the Wolf plain-
tiffs’ cases.
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64 Opinion of the Court 19-13926
[k]idnapping/murders, and [d]rugs over the course of [his] career
as a Special Agent in the FBI and as a private consultant.” Id. at 6.
His investigative experience included interviewing former and in-
carcerated AUC members to determine the amounts paid by
Chiquita to the AUC. See id. at 4.
The Wolf plaintiffs argue that Mr. Ortega, unlike Mr.
Kaplan, was an experiential expert—an expert qualified based on
his experience rather than formal education or academics. Even if
that is so, that fact alone is not enough to show an abuse of discre-
tion by the district court. Although it is true that “an expert may
be qualified by experience, . . . experience, standing alone, is [not]
a sufficient foundation rendering reliable any conceivable opinion
the expert may express.” Frazier, 387 F.3d at 1261. If an expert “is
relying solely or primarily on experience, then [he] must explain
how that experience leads to the conclusion reached, why that ex-
perience is a sufficient basis for the opinion, and how that experi-
ence is reliably applied to the facts.” Id. (quoting Fed. R. Evid. 702
advisory committee note, 2000 Amendment). So proponents of ex-
perience-based expert opinions (like those involving social science)
must put forth sufficient indicia of reliability and demonstrate that
the expertise permits the opinion(s) rendered. See Tyus, 102 F.3d
at 263 (the Daubert framework applies to “social science experts,
just as it applies to experts in the hard sciences,” though “the meas-
ure of intellectual rigor will vary by the field of expertise and the
way of demonstrating expertise will also vary”).
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19-13926 Opinion of the Court 65
Although Mr. Ortega satisfied these foundational require-
ments with regard to his general expertise, the Wolf plaintiffs still
cannot show an abuse of discretion. The reason is that there is an
“analytical gap” between the data on which Mr. Ortega relied and
his ultimate opinion that six victims, including the decedents of
Doe 378 and Doe 840, were probably killed by the AUC. See Gen.
Elec. v. Joiner, 522 U.S. 136, 146 (1997). Mr. Ortega never ex-
plained “how his experience . . . supported his opinion.” Hughes
v. Kia Motors Corp., 766 F.3d 1317, 1329 (11th Cir. 2014).
Despite not having reviewed any police or autopsy reports
for any of the decedents, and acknowledging that 38% of “selective
assassination[s]” in all of Colombia were committed by paramili-
taries (including, but not limited to, the AUC), Mr. Ortega con-
cluded that the six decedents were probably killed by the AUC. See
D.E. 2325-4 at 6, 17. How Mr. Ortega jumped from the 38% figure
to his ultimate opinion is not clear. Mr. Ortega said that “when
territorial control is considered, the vast majority of these crimes
[the selective assassinations by paramilitaries] were committed by
the group in control,” and that “[i]t would be highly unlikely for
local bandits or groups of common criminals to operate in an area
controlled/protected by the AUC.” D.E. 2325-4 at 15, 17. He also
noted that the relevant towns “were controlled by the AUC be-
tween 1995 and 1997, the range of dates of the cases reviewed.” Id.
at 15.
Even so, Mr. Ortega didn’t explain how his experience or
sources led to or supported the conclusion he reached. First, he
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66 Opinion of the Court 19-13926
offered nothing to support the conclusory statement that the “vast
majority” of the 38% of murders—which is necessarily less than
50% of the murders in Colombia—were committed by the group
in control. In contrast to some of his other data points, he did not
cite to any authority for this statement. See id. at 15–16. Instead,
the report indicated that this conclusion came from the statements
of counsel for the Wolf plaintiffs, who hired Mr. Ortega. See id. at
16–17 (“According to Plaintiffs’ counsel Paul Wolf, although he ac-
cepted cases of victims of both the paramilitaries and guerillas for
approximately a ten-year period each, over 90% of the [2,000] cases
he investigated were committed by the paramilitaries.”).
Under Rule 703, an expert may rely on inadmissible evi-
dence in forming his opinion, but the facts or data must be of the
kind that “experts in the particular field would reasonably rely on
. . . in forming an opinion on the subject.” Fed. R. Evid. 703. See
Bauman, 611 F.2d at 1120. “As a general rule, questions relating to
the bases and sources of an expert’s opinion affect the weight to be
assigned that opinion rather than its admissibility and should be left
for the jury’s consideration. . . . In some cases, however, the source
upon which an expert’s opinion relies is of such little weight that
the jury should not be permitted to receive that opinion.” Viterbo
v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987) (internal cita-
tion omitted). This is one such case. The hearsay statement of
counsel, absent independent investigation or verification, is not the
type of evidence on which an expert like Mr. Ortega would reason-
ably rely to form an opinion. See United States v. Tran Trong
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19-13926 Opinion of the Court 67
Cuong, 18 F.3d 1132, 1143–44 (4th Cir. 1994) (holding that the dis-
trict court erred in permitting a family medicine physician to bol-
ster his opinion with another expert’s forensic medical opinions
prepared specifically for litigation because those are not the types
of opinions on which an expert would rely). See also TK-7 Corp.
v. Estate of Barbouti, 993 F.2d 722, 732–33 (10th Cir. 1993) (holding
that the opinion of an expert who based his analysis on someone
else’s sales projections and “failed to demonstrate any basis for con-
cluding that another individual’s opinion on a subjective financial
prediction was reliable” failed to meet the requirements of Rule
703); Gong v. Hirsch, 913 F.2d 1269, 1272–73 (7th Cir. 1990) (con-
cluding that it was not an abuse of discretion to have excluded the
basis for an opinion where “the information sought to be relied on
. . . [was] merely a conclusory statement, made by a doctor who
was not the treating physician at the time of the illness in question,
for the presumed purpose of obtaining employment disability ben-
efits,” because it was unreliable under Rule 703).
Additionally, Mr. Ortega’s “vast majority” statement is little
more than a vehicle by which the Wolf plaintiffs can introduce
their own counsel’s otherwise inadmissible hearsay statement re-
garding the perceived strength of their cases. See United States v.
Mejia, 545 F.3d 179, 197 (2d Cir. 2008) (Although an expert can rely
on hearsay in formulating his opinion, he “may not . . . simply
transmit that hearsay to the jury. . . . Instead, the expert must form
his own opinions by applying his extensive experience and a relia-
ble methodology to the inadmissible materials.”) (internal
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68 Opinion of the Court 19-13926
quotation marks and citation omitted); United States v. Dukagjini,
326 F.3d 45, 54 (2d Cir. 2003) (“When an expert is no longer apply-
ing his extensive experience and a reliable methodology, Daubert
teaches that the testimony should be excluded.”). The Wolf plain-
tiffs have not shown that Mr. Ortega’s “vast majority” statement is
the product of a reliable methodology.
Mr. Ortega also didn’t adequately explain how the 38% fig-
ure allowed him, based on his expertise, to opine that the decedents
were probably murdered by the AUC. The preponderance of the
evidence standard requires a showing that a given proportion is
more likely true than not true. See United States v. Watkins, 10
F.4th 1179, 1184–85 (11th Cir. 2021) (en banc). It goes without say-
ing that 38% is less than 50.1%, and a “vast majority” of 38% is even
less than 50.1%. Mr. Ortega does not say how a figure that consti-
tutes at best a plurality of the selective assassinations committed in
Colombia (the 38% figure) allows the conclusion that the murders
of certain decedents were probably committed by the AUC. And
as we stated, an expert cannot, without more, base his opinion on
an unverified assertion by the attorney who hired him.
Correlation evidence can be misleading if it “does not ade-
quately account for other contributory variables,” United States v.
Valencia, 600 F.3d 389, 425 (5th Cir. 2010). Absent additional infor-
mation regarding the link between Mr. Ortega’s expertise and the
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19-13926 Opinion of the Court 69
expert opinion, we cannot conclude that the district court abused
its discretion. See Frazier, 387 F.3d at 1261. 23
5
Relatedly, the parties posit that the district court excluded
the modus operandi evidence, and some of the plaintiffs argue that
this was error. See Non-Wolf Plaintiffs’ Initial Br. at 29–36; Appel-
lees’ Answer Br. at 37–38. The modus operandi evidence consisted
of testimony and reports stating that the AUC (1) killed “subver-
sives” by gruesome methods and often left their victims’ bodies in
public to send a message; (2) kidnapped victims, often on motorcy-
cles, as a means of terror; (3) killed victims while hooded or
masked; (4) took victims from their homes at night; and (5) stopped
vehicles at roadblocks to murder people. See Non-Wolf Plaintiffs’
Initial Br. at 30–31; Non-Wolf Plaintiffs’ Reply Br. at 19–22.
As with the expert testimony, the district court explained
that this “circumstantial evidence” was “not, standing alone, suffi-
cient evidence from which a reasonable jury could infer that the
killings were, more likely than not, attributable to the AUC.” D.E.
23
The Wolf plaintiffs also argue that the district court erred in failing to con-
sider whether Mr. Ortega’s opinion was admissible as that of a lay witness un-
der Rule 701. This argument, however, was not made to the district court, so
we do not consider it. See Access Now, Inc. v. S.W. Airlines Co., 385 F.3d
1324, 1331 (11th Cir. 2004) (“This Court has repeatedly held that an issue not
raised in the district court and raised for the first time in an appeal will not be
considered by this court.”) (internal quotation marks and citation omitted).
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70 Opinion of the Court 19-13926
2551 at 67. As such, the court concluded that it was “insufficient to
create a triable issue of fact on causation.” Id.The district court also stated, however, that it “[found] no
basis for admitting” the modus operandi evidence under Rule
404(b) because the evidence was not “specific” enough to “distin-
guish[ ] AUC methodologies from brutalities committed by other
[groups].” Id. at 66. The court cited to United States v. Myers, 550
F.2d 1036, 1045–46 (5th Cir. 1977), for the proposition that in order
to admit modus operandi evidence under Rule 404(b) the propo-
nent must show “such peculiar, unique or bizarre similarities as to
mark them as handiwork” of a particular individual or group. See
id.In the context of this case, the district court’s reliance on My-
ers—which involved the improper use of Rule 404(b) modus op-
erandi evidence against the defendant on trial—was mistaken. Un-
der Rule 404(b), “[e]vidence of any other crime, wrong, or act is
not admissible to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with the
character.” The circuits are divided on whether Rule 404(b) applies
to crimes, wrongs, or acts committed by someone other than the
defendant in the case (i.e., the accused or the person being sued).
See 3 Michael H. Graham, Handbook of Fed. Evid. § 404:5 (9th ed.
& Nov. 2021 update) (citing cases). As the plaintiffs argued below,
see D.E. 2510 at 7, in the Eleventh Circuit evidence is excludable
under Rule 404(b) when it relates to “acts committed by the de-
fendant himself.” United States v. Meester, 762 F.2d 867, 877 (11th
USCA11 Case: 19-13926 Date Filed: 09/06/2022 Page: 71 of 104
19-13926 Opinion of the Court 71
Cir. 1985). But Rule 404(b) does not apply to evidence pertaining
to acts committed by others, even members of a conspiracy. See
id. Indeed, “we have held in both the civil and criminal contexts
that Rule 404(b) does not—at least of its own force—apply when,
as here, the challenged . . . evidence implicates a witness or another
non-party to the litigation.” Ermini v. Scott, 937 F.3d 1329, 1342
(11th Cir. 2019). Instead, as we recognized in Ermini, “the factors
articulated in Rule 404 ‘should be considered in weighing the bal-
ance between the relevancy of this evidence and its prejudice under
Rule 403.’” Id. at 1343 (quoting United States v. Sellers, 906 F.2d
597, 604 n.11 (11th Cir. 1990)). Thus, where the evidence concerns
a third party, there is no presumptive exclusion under Rule 404(b)
and the analysis “takes place under the auspices of Rule 403 rather
than Rule 404(b).” See id.We conclude that the modus operandi evidence should not
have been excluded under Rule 404(b). The defendants here are
Chiquita and some of its executives. The AUC and its members,
the subjects of the modus operandi evidence, are not defendants.
The plaintiffs, therefore, are not submitting the evidence “to prove
[the defendants’] character” in any way, let alone “to show that on
a particular occasion [the defendants] acted in accordance with that
character.” The plaintiffs are instead offering the evidence to show
that the perpetrators of the decedents’ murders were members of
or affiliated with the AUC. See United States v. U.S. Infrastructure,
Inc., 576 F.3d 1195, 1210 (11th Cir. 2009) (“Rule 404(b) does not
specifically apply to exclude . . . evidence [which] involves an
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72 Opinion of the Court 19-13926
extraneous offense committed by someone other than the defend-
ant.”).
When a defendant seeks to introduce so-called “reverse”
Rule 404(b) evidence to point the finger at a third party, we have
said that “the standard for admission is relaxed.” United States v.
Cohen, 888 F.2d 770, 776 (11th Cir. 1989). Some commentators
have echoed that view. See 1 Mueller, Fed. Evid. at § 4:37
(“[D]efense proof of third-party acts or crimes should be admissible
if they have significant features in common with the charged of-
fense, even though the resemblance is not so extensive, and the
common features are not so rare or unique, that they satisfy the
‘signature’ standard that applies when such evidence shows the de-
fendant’s prior crimes or acts and is offered to prove guilt on a mo-
dus operandi theory.”); Michael H. Graham, 43 No.1 Crim. L. Bull.
Article 2 (Winter 2007) (when evidence of a third party’s acts is of-
fered, “a relaxation in the degree of similarity required in compari-
son to when other crimes, wrongs, or acts evidence is offered by
the prosecution [against a defendant] is appropriate and generally
accepted”). The situation here is, of course, different in that we do
not have a defendant seeking to assign blame to another. But these
authorities nevertheless suggest that the district court required too
much with respect to the plaintiffs’ modus operandi evidence.
Given that Rule 404(b) does not apply in the scenario pre-
sented here, its requirements do not govern the admissibility of the
modus operandi evidence with respect to the AUC and its mem-
bers. The plaintiffs offered the modus operandi evidence for a
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19-13926 Opinion of the Court 73
permissible purpose and the district court’s reason for exclusion
cannot be squared with our precedent. And because the court did
not perform any Rule 403 balancing, see Ermini, 937 F.3d at 1343,
we cannot affirm its exclusion on that basis. 24
G
Finally, the Non-Wolf plaintiffs argue that certain Justice
and Peace documents which were not otherwise admissible fall
within the Rule 807 residual hearsay exception. We disagree, and
hold that the Mangones sentencia, the Herrera judgment, and the
letters from Colombian prosecutors and investigators are not ad-
missible under Rule 807.
Rule 807 allows a hearsay statement to be admitted, even if
it doesn’t fall under any exception in Rules 803 or 804, if the state-
ment (1) “is supported by sufficient guarantees of trustworthi-
ness—after considering the totality of circumstances under which
it was made and evidence, if any, corroborating the statement,”
and (2) “is more probative on the point for which it is offered than
any other evidence that the proponent can obtain through reason-
able efforts.” The 2019 amendment to Rule 807 embodies “a more
general call for reliability.” 30B Bellin, Fed. Prac. & Proc.: Evid. at
§ 7063.
24We express no view on how that Rule 403 balancing should play out on
remand. And we do not address the other arguments made by the Chiquita
defendants for exclusion of the modus operandi evidence because they were
not addressed by the district court.
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74 Opinion of the Court 19-13926
The district court ruled that because the plaintiffs did “not
identify any specific piece of evidence they [sought] to admit under
the residual hearsay exception,” it was “unable to make an in-
formed assessment of its applicability to any specific document or
category.” D.E. 2551 at 44. It also explained that, “[a]s a global
proposition,” the “several proffered unauthenticated, excerpted
and unsigned documents” did not satisfy Rule 807 because they
were not necessarily trustworthy, they were not more probative
on the relevant issue than other available evidence, and the inter-
ests of justice did not compel their inclusion. See id. at 44–45.
When making their Rule 807 argument before the district
court, the plaintiffs asserted that “[t]he reports, documents[,] and
confessions” were admissible because the “Justice and Peace con-
fessions” had “[equivalent] circumstantial guarantees of trustwor-
thiness,” were appropriately probative, and were “in the interest of
justice.” D.E. 2510 at 5 (citing to subsections (3) and (4) of Rule
807, which no longer exist). They did not, however, refer to any
specific documents and instead seemed to treat all of the Justice and
Peace documents as one. See id.
On appeal, the plaintiffs continue to be vague about the ap-
plication of Rule 807. They argue that “the Justice and Peace doc-
uments” should have been allowed under the December 2019 ver-
sion of Rule 807, and not the old version with the requirements
they previously cited to the district court. They argue that the cur-
rent version of Rule 807 should have applied “at least to the second
of the two bellwether trials” and that we should remand for the
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19-13926 Opinion of the Court 75
court to properly apply that version. See Non-Wolf Plaintiffs’ Ini-
tial Br. at 60–61. And they maintain that the current version should
apply to all the disputed evidence because the court never decided
which plaintiffs would be in which trial.
For a number of reasons, the district court did not err in ap-
plying Rule 807. First, although the Non-Wolf plaintiffs were likely
referring to the Hasbún indictment, the Mangones sentencia, the
Herrera judgment, and the five letters from Colombian prosecu-
tors and investigators in their arguments below, we do not know
for sure. The court did not abuse its discretion by not engaging in
the plaintiffs’ guessing game. Second, the court simply applied the
version of Rule 807 presented by the plaintiffs, so any error with
respect to the appropriate version was invited. See Lanfear v.
Home Depot, Inc., 679 F.3d 1267, 1279 n.15 (11th Cir. 2012) (apply-
ing the doctrine of invited error where the district court applied
“the only standard the plaintiffs put forth in support of their posi-
tion” because “[i]t is a cardinal rule of appellate review that a party
may not challenge as error a ruling or other trial proceeding invited
by that party”) (quotation marks omitted). “Where a party invites
error,” we are “precluded from reviewing that error on appeal,”
and we therefore cannot find any abuse of discretion with respect
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76 Opinion of the Court 19-13926
to Rule 807. See United States v. Brannan, 562 F.3d 1300, 1306
(11th Cir. 2009) (quotation marks omitted). 25
III
Given our rulings on the evidentiary matters, we now apply
the Rule 56 summary judgment standard to the bellwether plain-
tiffs’ cases. We consider, of course, the evidence that was not ex-
cluded (e.g., the statistical data evidence provided by Mr. Kaplan
for the Non-Wolf plaintiffs and by Mr. Ortega for the Wolf plain-
tiffs) and the evidence that was improperly excluded (e.g., Mr.
Kaplan’s ultimate opinion and the modus operandi evidence).
To recap, the statistical data evidence for the Non-Wolf
plaintiffs (through Mr. Kaplan) was that from 1997 to 2007—the
relevant time period in this case—paramilitaries were responsible
for 90% of the murders in the decedents’ municipalities. See D.E.
2348-4 at 41. From this and other evidence, Mr. Kaplan opined that
“[m]any if not all of the human rights violations against the bell-
wether victims in this case were caused by the AUC paramilitaries.”
Id. at 52. The statistical data evidence for the Wolf plaintiffs
(through Mr. Ortega) was that 38% of selective assassinations in all
25The Non-Wolf plaintiffs raise an additional issue concerning the district
court’s denial of the Wolf plaintiffs’ attempt to obtain certain Justice and Peace
documents in discovery. They argue that either the discovery ruling was er-
roneous or summary judgment was improper. See Non-Wolf Plaintiffs’ Initial
Br. at 62–65. Because we are reversing summary judgment as to the Non-
Wolf plaintiffs, we do not address the matter of the Justice and Peace docu-
ments.
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19-13926 Opinion of the Court 77
of Colombia during the relevant period were committed by para-
militaries. This figure was offered in combination with Mr. Or-
tega’s statement that “when territorial control is considered, the
vast majority of these crimes were committed by the group in con-
trol.” D.E. 2325-4 at 17. And for both sets of plaintiffs, the modus
operandi evidence indicated that AUC kidnappings and murders
had certain common characteristics.
There has long been a debate, in both judicial and academic
circles, about whether so-called “naked statistical evidence” can
sometimes allow a civil plaintiff to withstand summary judgment
and prevail at trial. See, e.g., NOCO Co. v. OJ Com., LLC, 35 F.4th
475, 487–89 (6th Cir. 2022); Guenther v. Armstrong Rubber Co.,
406 F.2d 1315, 1318 (3rd Cir. 1969); Galvin v. Eli Lilly & Co., 488
F.3d 1026, 1034–35 (D.C. Cir. 2002); Howard v. Wal-Mart Stores,
Inc., 160 F.3d 358, 359–60 (7th Cir. 1998); Frederick Schauer, Pro-
files, Probabilities, and Stereotypes 81–87 (2003); Ronald J. Allen &
Brian Leiter, Naturalized Epistemology and the Law of Evidence,
87 Va. L. Rev. 1491, 1523–26 (2001); Richard A. Posner, An Eco-
nomic Approach to the Law of Evidence, 51 Stan. L. Rev. 1477,
1508–14 (1999); Symposium, Probability and Inference in the Law
of Evidence, 66 B.U. L. Rev. 377, 381–952 (1986); Laurence H.
Tribe, Trial by Mathematics: Precision in the Legal Process, 84
Harv. L. Rev. 1329, 1338–77 (1971). The parties have not briefed
this issue and have not told us anything about Colombian substan-
tive law, so we do not make any broad pronouncements today. It
is enough, for our purposes, to note that statistical evidence can,
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78 Opinion of the Court 19-13926
depending on its nature, be probative on the question of who com-
mitted a certain act. Cf. Kaminsky v. Hertz Corp., 288 N.W.2d 426,
427 (Mich. Ct. App. 1980) (holding, in a tort case involving a vehic-
ular accident caused by a yellow truck with a Hertz logo, that Hertz
was not entitled to summary judgment where the parties stipulated
that Hertz owned “approximately 90 percent of such vehicles while
the other 10 percent [were] owned by licensees or franchisees”);
Ronald J. Allen, On the Significance of Batting Averages &
Strikeout Totals: A Clarification of the “Naked Statistical Evidence”
Debate, the Meaning of “Evidence,” and the Requirements of
Proof Beyond a Reasonable Doubt, 65 Tulane L. Rev. 1093, 1096
(1991) (“[S]tatistical evidence is admissible, and heavily statistical
cases may be sufficient.”).
A
We review the grant of a motion for summary judgment de
novo. See Lippert v. Cmty. Bank, Inc., 438 F.3d 1275, 1278 (11th
Cir. 2006). Summary judgment is appropriate if the record shows
“that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” Id. (quot-
ing Fed. R. Civ. P. 56(c)). “A genuine issue of material fact exists
when ‘the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.’” Bowen v. Manheim Remktg.,
Inc., 882 F.3d 1358, 1362 (11th Cir. 2018) (quoting Anderson v. Lib-
erty Lobby, Inc., 477 U.S. 242, 248 (1986)). The question here is
“whether reasonable jurors could find by a preponderance of the
evidence that” a bellwether plaintiff’s decedent was killed by the
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19-13926 Opinion of the Court 79
AUC. See Anderson, 477 U.S. at 252. As noted earlier, the prepon-
derance standard requires a showing that a given proposition is
more likely true than not true. See Watkins, 10 F.4th at 1184–85.
When we review the evidence at summary judgment, we
“draw[ ] all reasonable inferences in the light most favorable to the
non-moving part[ies],” which here are the plaintiffs. See Owen v.
I.C. Sys., Inc., 629 F.3d 1263, 1270 (11th Cir. 2011). Even when the
underlying facts are undisputed, summary judgment is improper if
those facts can lead to conflicting inferences on material issues. See
Manners v. Cannella, 891 F.3d 959, 967 (11th Cir. 2018) (“Even
where the parties agree on the facts, ‘[i]f reasonable minds might
differ on the inferences arising from undisputed facts, then the
court should deny summary judgment.’”) (alteration in original)
(citation omitted).
A district court errs if it weighs the evidence or makes cred-
ibility determinations at the summary judgment stage. See Sears
v. Roberts, 922 F.3d 1199, 1209 (11th Cir. 2019). But if a case is “so
one-sided that one party must prevail as a matter of law,” then
summary judgment is appropriate. See Bowen, 882 F.3d at 1362
(citation omitted).
B
The district court apparently considered some of the plain-
tiffs’ evidence “standing alone.” See, e.g., D.E. 2551 at 8 n.5, 49, 62,
66, 67, 71. At the summary judgment stage of the proceedings,
however, courts are required to consider “the totality of the
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80 Opinion of the Court 19-13926
evidence adduced in [the] summary judgment record.” Lippert,
438 F.3d at 1278.
Before turning to the individual cases, we offer one addi-
tional observation. In cases such as this one, involving acts of vio-
lence allegedly perpetrated by a terrorist group and its members,
plaintiffs often lack direct evidence and are therefore more likely to
rely on circumstantial evidence. Cf. Han Kim v. Democratic Peo-
ple’s Republic of Korea, 774 F.3d 1044, 1051 (D.C. Cir. 2014) (ex-
plaining that it was unrealistic to expect the plaintiffs to have direct
evidence that the deceased was killed at a North Korean labor
camp, and holding that it was sufficient under the Foreign Sover-
eign Immunities Act for them to prove that “the regime abducted
the [deceased], that it invariably tortures and kills prisoners like
him, and that it uses terror and intimidation to prevent witnesses
from testifying”). We treat circumstantial evidence the same as di-
rect evidence. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 100
(2003) (“The reason for treating circumstantial and direct evidence
alike is both clear and deep rooted: ‘Circumstantial evidence is not
only sufficient, but may also be more certain, satisfying and persua-
sive than direct evidence.’”) (citation omitted). 26
26 Circumstantial evidence, as Sherlock Holmes once put it, “is a very tricky
thing . . . . It may seem to point very straight to one thing, but if you shift your
own point of view a little, you may find it pointing in an equally uncompro-
mising manner to something entirely different.” Sir Arthur Conan Doyle, The
Boscombe Valley Mystery, in 2 The Annotated Sherlock Holmes 136 (William
S. Baring-Gould ed. 1967).
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19-13926 Opinion of the Court 81
C
We first address the claims of the Non-Wolf plaintiffs.
1
John Doe 7 has presented enough evidence to establish a
genuine issue of material fact as to whether the AUC killed or was
responsible for the murder of his son, John Doe 8. We explain why
below.
In addition to the statistical data evidence, Mr. Kaplan’s
opinion, and the modus operandi evidence, John Doe 7 relied on
his own testimony, see Part II.D.1, and the Hasbún indictment, see
Part II.A.1, to demonstrate a genuine issue of material fact. John
Doe 7’s testimony—that an AUC commander did not deny that he
had killed John Doe 8 and instead explained why John Doe 8 was
murdered—could be relied on by a jury to conclude that John Doe
8 was an AUC murder victim. The same goes for the Hasbún in-
dictment, which indicates that Mr. Hasbún, a different AUC leader,
confessed to being responsible for John Doe 8’s murder—a confes-
sion that was verified by Justice and Peace process officials. These
two pieces of evidence alone show that the case is not “so one-
sided” that summary judgment should have been granted in favor
of the defendants. Cf. Boim, 549 F.3d at 702–05 (holding that, based
on an expert’s knowledge of Islamic terrorist organizations, review
of the record, independent research, and reliance on a website con-
trolled by Hamas, the plaintiffs set forth sufficient evidence to show
that Hamas was responsible for the murder of the decedent).
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82 Opinion of the Court 19-13926
Because a jury could conclude that John Doe 8 was killed by
the AUC, the district court erred in granting summary judgment
against John Doe 7. In so holding, we have not considered John
Doe 7’s other evidence, such as the letter from the Colombian pros-
ecutor, which may or may not be found admissible on remand. See
Bowen, 882 F.3d at 1362. 27
2
Juvenal Fontalvo Camargo introduced sufficient evidence to
withstand summary judgment as to whether the AUC murdered
his son, Franklin Fabio Fontalvo Salas. Mr. Salas, a banana worker,
was kidnapped at a banana farm, killed, and his body was later
found at the entrance of a different banana farm.
Mr. Camargo presented testimony from two witnesses: Ser-
gio Contreras Castro, who saw Mr. Salas being kidnapped; and
Ever Joel Fontalvo, who found Mr. Salas’ body and was later threat-
ened for moving his body. The district court disregarded this evi-
dence because the witnesses did “not establish any personal
knowledge” for their testimony that the kidnappers, or those who
made the threats, respectively, were AUC members. See D.E. 2551
at 58–59.
In his sworn declaration, Mr. Castro stated that he saw Mr.
Salas being kidnapped by four men on motorcycles; Mr. Salas was
27Because we are setting aside the summary judgment in favor of the defend-
ants, the plaintiffs’ motion for judicial notice of evidence supporting John Doe
7’s claim is denied as moot.
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19-13926 Opinion of the Court 83
bound and sitting between two men on one of the motorcycles.
Mr. Castro also said that one of the men who kidnapped Mr. Salas
was El Ruso, whom he “knew as a paramilitary leader,” or, in other
words, an AUC leader. See D.E. 2346-58 at 3–4. Mr. Castro did not
explain how he knew that El Ruso was an AUC leader, so the dis-
trict court did not abuse its discretion in ruling that Mr. Camargo
did not sufficiently establish Mr. Castro’s personal knowledge that
one of the kidnappers was an AUC member. See Corwin, 475 F.3d
at 1250 (holding that the district court did not abuse its discretion
in disregarding summary judgment evidence that was not based on
personal knowledge). But Mr. Castro’s eyewitness testimony re-
garding the kidnapping was admissible and can be considered as
part of the totality of the circumstances established by Mr. Ca-
margo. See Lippert, 438 F.3d at 1278. 28
Mr. Fontalvo, in his sworn declaration, testified as to several
encounters that he had with AUC members after Mr. Salas’ death.
He related that an AUC member “detained [him] and demanded to
know why [he] had taken away [Mr. Salas’s] body from where they
28 In his initial brief, Mr. Camargo contends that supplemental decla-
rations from Mr. Castro and Mr. Fontalvo provide additional support for Mr.
Castro’s identification of El Ruso as an AUC leader. He does not argue, how-
ever, that the district court erred when it denied his motion requesting recon-
sideration of summary judgment in light of the new declarations. By failing
to properly make this argument he has abandoned it, so we do not consider
the supplemental declarations. See Sapuppo v. Allstate Floridian Ins. Co., 739
F.3d 678, 680 (11th Cir. 2014).
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84 Opinion of the Court 19-13926
had killed him.” D.E. 2346-59 at 4. Mr. Fontalvo said that AUC
members later detained him a second time, asking how he was con-
nected to Mr. Salas and saying that he shouldn’t have moved Mr.
Salas’s body “from the place they killed him.” Id. Mr. Fontalvo
also stated that the AUC’s chief in the area, El Tijeras (Mr. Man-
gones), personally called him and asked why he had taken Mr.
Salas’s body. Finally, Mr. Fontalvo explained that he recognized
the AUC members (including El Ruso) based on how they were
dressed—either wearing an AUC bracelet or a military uniform—
and the fact that they always openly carried their weapons. Be-
cause Mr. Fontalvo sufficiently explained why he believed the peo-
ple who threatened him were AUC members, the district court
abused its discretion in concluding that he lacked any personal
knowledge. A jury could refuse to credit Mr. Fontalvo’s testimony
on AUC affiliation, but it was admissible.
Taken together, Mr. Castro’s testimony as to the method of
the kidnapping, Mr. Fontalvo’s testimony, the statistical data evi-
dence (that 90% of the murders in the decedents’ municipalities
were committed by paramilitaries), Mr. Kaplan’s opinion, the mo-
dus operandi evidence regarding the AUC’s use of motorcycles for
kidnappings, see Part II.F.2, and other circumstantial admissible ev-
idence, such as the attendance of AUC members at Mr. Salas’ wake,
see App. 5523, are sufficient evidence for a jury to reasonably con-
clude that the AUC killed Mr. Salas. Although the Mangones sen-
tencia is not admissible, see Part II.C.1, and the admissibility of Mr.
Camargo’s letter from the Justice and Peace investigator is to be
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19-13926 Opinion of the Court 85
determined on remand, see Part II.A.2, we conclude that the dis-
trict court erred in granting summary judgment against Mr. Ca-
margo.
3
Jane Doe 7 presented enough evidence that the AUC killed
her husband, John Doe 11. He had worked at a banana farm, had
been an elected representative of his coworkers in a workers’
rights’ committee, and had been a member of the banana workers’
union. He was kidnapped from his house, which was located in
the Urabá region, by three men with their faces covered and later
killed. See D.E. 2348-51 at 5, 9.
As noted earlier, Jane Doe 7 submitted both testimonial and
circumstantial evidence about the murder of John Doe 11. Her tes-
timony that his name was on an AUC hit list is not admissible, see
Part II.E.3, but her testimony and that of others regarding his kid-
napping and death are admissible. For example, Jane Doe 7 pre-
sented admissible evidence that the way John Doe 11 was killed—
kidnapped and then stabbed, see App. 6091–93, 6602—was aligned
with portions of the AUC’s modus operandi.
John Doe 11, as recounted above, was the sort of labor ac-
tivist targeted by the AUC. See Part II.F.2. His role as a labor ac-
tivist presents a potential motive, which “is an integral part of any
crime.” United States v. Covington, 565 F.3d 1336, 1342 (11th Cir.
2009). And the record indicates that union leaders were often tar-
geted by the AUC—specifically in Urabá—for being aligned with
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86 Opinion of the Court 19-13926
the guerillas. See, e.g., D.E. 2346-10 at 11, 2346-103 at 9; App. 6679,
6682. Moreover, Jane Doe 7 presented evidence of graffiti threat-
ening union organizers in John Doe 11’s hometown and said that
the paramilitaries were there. See App. 6677, 6679. That circum-
stantial evidence further suggests that the AUC would’ve targeted
a union leader like John Doe 11.
All of this evidence, together with the statistical data evi-
dence and opinion provided by Mr. Kaplan, permit a jury to find
that John Doe 11 was killed by the AUC. The district court there-
fore erred in granting summary judgment against Jane Doe 7.
4
Nancy Mora Lemus witnessed the murder of Miguel Anto-
nio Rodriguez Duarte, her common-law spouse. She too estab-
lished a genuine issue of material fact regarding the AUC’s involve-
ment in the murder.
Ms. Lemus explained how Mr. Duarte was killed, and what
his murderers wore. She related that two men arrived at their
house, kidnapped Mr. Duarte, walked him down a path to the
river, tied him to a pole, and then cut his throat. See D.E. 2551 at
14 (describing D.E. 2348-45 at 16–18). The two men were armed
with rifles and a knife and wore sweatshirts and green shirts. She
said they were not wearing uniforms and described a symbol on
their clothes as “a wheel, like a brand.” See id. at 15 (quoting D.E.
2348-45 at 19). She explained that she knew that they were AUC
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19-13926 Opinion of the Court 87
members because “they were the [only] ones who were there in
that area.” See id. at 14–15 (quoting D.E. 2348-45 at 21).
The evidence about the perpetrators and the murder does
not fit the modus operandi of the AUC. See Part II.F.2. Mr. Duarte,
moreover, was not a member of any targeted political parties, gue-
rilla groups, gangs, or labor unions. See D.E. 2348-45 at 23. Alt-
hough on appeal Ms. Lemus argues that the wheel emblem identi-
fied the men as AUC members, she testified that she did not recog-
nize the symbol. See D.E. 2551 at 15 (describing D.E. 2348-45 at
18). Nor did she provide evidence connecting the symbol to the
AUC.
The evidence that the AUC was in the area and the details
about how Mr. Duarte was murdered, without anything else,
would not be enough to establish a genuine issue of material fact
about the AUC’s involvement. Cf. Sullivan v. Republic of Cuba,
891 F.3d 6, 11 (1st Cir. 2018) (holding that second- and third-hand
reports that the plaintiff’s father was in a Cuban prison were not
enough to establish that he was the victim of an extrajudicial killing
by the state under the Foreign Sovereign Immunities Act). But
there is also the statistical data evidence, which was that 90% of the
murders committed in the decedents’ municipalities were carried
out by paramilitaries, and Mr. Kaplan’s opinion. That evidence,
combined with the AUC’s operations in the area and the absence
of another reason for the murder of Mr. Duarte, gets the claim to
a jury. The district court erred in granting summary judgment
against Ms. Lemus.
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88 Opinion of the Court 19-13926
5
John Doe 11 was shot in public. Juana Doe 11 and Minor
Doe 11A may have provided enough evidence to show the exist-
ence of a genuine issue of material fact with respect to who was
responsible for the murder of John Doe 11. On remand, the district
court will need to reconsider summary judgment after it deter-
mines the admissibility of the relevant letter from the Justice and
Peace prosecutors. 29
As explained earlier, Juana Doe 11 and Minor Doe 11A sub-
mitted several pieces of evidence that are not admissible, see Parts
II.C.1 and II.D.2, and the modus operandi evidence does not fit
John Doe 11’s murder. But they also proffered a letter from the
Justice and Peace prosecutors regarding Mr. Mangones’ confession
as to John Doe 11’s death. See Part II.A.2. The additional circum-
stantial evidence—such as the statistical data evidence, Mr.
Kaplan’s opinion, and the AUC’s operations in the area where John
Doe 11 was killed—may be enough to survive summary judgment.
We leave it to the district court on remand to determine whether
the letter from the prosecutors is admissible and whether it, to-
gether with the other evidence, is sufficient to establish a genuine
issue of material fact as to whether the AUC was responsible for
the murder of John Doe 11.
29 To avoid confusion, we note that this John Doe 11 is not the same John Doe
11 who is Jane Doe 7’s decedent.
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19-13926 Opinion of the Court 89
6
José López 339 was shot and killed by men on motorcycles.
We conclude that his seven surviving children presented enough
evidence about the AUC’s involvement to proceed past summary
judgment.
Along with other admissible evidence, such as the statistical
data evidence, Mr. Kaplan’s opinion, and the modus operandi evi-
dence, see Parts II.F.1 and II.F.2, Mr. López’s children presented
testimony that an AUC commander apologized to them for Mr.
López’s death. See Part II.D.4. All of this evidence is enough for a
jury to reasonably conclude that the AUC was responsible for kill-
ing Mr. López. The district court therefore erred in granting sum-
mary judgment against Mr. López’s children.
7
Pablo Pérez 43A, a banana farmer who lived in an area con-
trolled by the AUC, was shot dead at the corner of his mother’s
house. Juana Pérez 43A has presented evidence that may preclude
summary judgment with respect to the AUC’s involvement in his
murder, but that ultimate determination will depend on admissi-
bility rulings on remand.
As discussed above, see Part II.A.2, Juana Pérez 43A received
two letters from prosecutors stating that (1) Mr. Mangones had
“confessed” to killing Pablo Pérez 43A; (2) the authorities had in-
dicted Mr. Mangones for the crime; and (3) a magistrate judge had
“confirmed the criminal charges” and “issued a sentence
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90 Opinion of the Court 19-13926
judgment” against him. See D.E. 2346-50 at 2; D.E. 2346-77 at 2-3.
The first letter sent to Juana Pérez 43A also states that Pablo Pérez
43A’s “homicide” was “attributable to members of the extinct
northern block of the William Rivas Front of the AUC.” D.E. 2346-
50 at 2.
Juana Pérez 43A does not benefit from the modus operandi
evidence because the murder of Pablo Pérez 43A does not share
sufficient similarities with the AUC’s behavior. Although the sta-
tistical data evidence and Mr. Kaplan’s opinion help her, we need
not decide at this time whether that evidence is by itself sufficient.
Because we have remanded on whether the letters from the prose-
cutors are admissible, we also set aside the summary judgment
against Juana Pérez 43A. Once the district court has determined
whether the prosecutors’ letters are admissible, it should then ad-
dress whether summary judgment is appropriate. If the letters are
admissible, Juan Pérez 43A’s claim will get to a jury.
8
Ana Ofelia Torres Torres, Pastora Durango, and Gloria Eu-
genia Muñoz have introduced sufficient evidence to preclude sum-
mary judgment as to the AUC’s involvement in the murder of their
decedents. Ms. Torres’ decedent, Ceferino Antonio Restrepo Tan-
garife, was a banana worker. He was shot in the head outside of
his home, which was in an AUC-dominated municipality. Ms. Du-
rango’s decedent, Waynesty Machado Durango, was also mur-
dered in an AUC-controlled area. Ms. Muñoz’s decedent, Miguel
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19-13926 Opinion of the Court 91
Angel Cardona, was abducted and murdered by two men on mo-
torcycles in an AUC-dominated area.
Ms. Torres, Ms. Durango, and Ms. Muñoz submitted and re-
lied on the Hasbún indictment. See Part II.A.1. The indictment
charged Mr. Hasbún with the murders of each of their decedents.
Reading the indictment in conjunction with Mr. Sánchez León’s
declaration, see id., there are at least two inferences that the jury
could draw in the plaintiffs’ favor. The first is that Mr. Hasbún
confessed to being responsible for the three murders. The second
is that the Justice and Peace prosecutors corroborated Mr.
Hasbún’s confession as part of their investigation before indicting
him.
Where “reasonable minds might differ on the inferences
arising from undisputed facts,” summary judgment should not be
granted, and a fact finder should be permitted to determine which
inferences to accept. See Clark v. Union Mut. Life Ins. Co., 692
F.2d 1370, 1372 (11th Cir. 1982). Here, drawing all reasonable in-
ferences in favor of Ms. Torres, Ms. Durango, and Ms. Muñoz, and
taking into account the statistical data evidence and Mr. Kaplan’s
opinion, a jury could reasonably conclude that the AUC, under Mr.
Hasbún’s command, killed Mr. Tangarife, Mr. Durango, and Mr.
Cardona. The district court therefore erred in granting summary
judgment in favor of the defendants as to these three plaintiffs and
their decedents.
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92 Opinion of the Court 19-13926
C
We turn now to the Wolf Plaintiffs. They did not rely on
the statistical data evidence provided by Mr. Kaplan, and instead
submitted Mr. Ortega’s data and opinions. Mr. Ortega stated that
38% of the individual murders—“selective assassination[s]”—in all
of Colombia during the relevant time period were committed by
paramilitaries. See D.E. 2325-4 at 17. He also stated that the rele-
vant towns “were controlled by the AUC between 1995 and 1997,
the range of dates of the case reviewed.” Id. at 15. Taking those
two things in combination, Mr. Ortega opined that “the vast ma-
jority of these crimes were committed by the group in control.” Id.
at 17. As noted earlier in Part II.F.4, however, the district court did
not err in excluding Mr. Ortega’s ultimate opinion. So we do not
consider it here.
1
Doe 378 has not offered sufficient, admissible evidence to
demonstrate the existence of a genuine issue of material fact as to
the AUC’s involvement in the murder of her unnamed brother.
The only direct evidence she has presented shows that her brother,
a banana worker, went out one evening in violation of an AUC-
imposed curfew, and that at some point while he was out, he was
shot and killed by an unidentified individual who took his identifi-
cation card.
In support of her position, Doe 378 argues that several doc-
uments—a letter from the Acción Social agency and a letter from a
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19-13926 Opinion of the Court 93
hospital—are admissible, but as far as we can tell they were never
excluded by the district court. The hospital letter, however, does
not provide any additional information or insight as to how Doe
378’s brother was killed or who was responsible. The hospital let-
ter merely discusses issues not in dispute—the time, place, and
manner of death—and is therefore cumulative. As for the Acción
Social letter, the defendants argue that it was inadmissible under
Rules 803(6) and 803(8). See Appellees’ Answer Br. at 22–27. In
response, Doe 378 argues in summary fashion that the letter satis-
fies Rule 803(8), but that conclusory argument is insufficient. See
Sapuppo, 739 F.3d at 681 (“[A]n appellant abandons a claim when
[she] either makes only passing references to it or raises it in a per-
functory manner without supporting arguments and authority.”).
With respect to Rule 803(6), Doe 378 says that she will present a
man named Carlos Eusse to provide the foundation for admissibil-
ity, but there is no evidence in the record to explain who Mr. Eusse
is or how he has the knowledge to satisfy Rule 803(6). Given these
fatal problems, we do not need to address any hearsay-within-hear-
say related to the Acción Social letter.
As noted earlier, Mr. Ortega’s expert report contained a
statement that “[t]he paramilitaries were responsible for the vast
majority of the murders in Urab[á]” from 1995 to 1997. D.E. 2325-
4 at 16. That statement, however, was based on what the attorney
for the Wolf plaintiffs told Mr. Ortega—that “although he accepted
cases of victims of both the paramilitaries and guerillas for approx-
imately a ten-year period each, over 90% of the [2,000] cases he
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94 Opinion of the Court 19-13926
investigated were committed by the paramilitaries.” Id. at 16–17.
We do not consider this “vast majority” statement in analyzing
whether Doe 378 has demonstrated a genuine issue of material fact
for at least two reasons. First, the statements of the attorney as to
what his “investigat[ion]” may have demonstrated about the verac-
ity of his clients’ cases are not an appropriate basis for Mr. Ortega
to form an expert opinion on causation. See, e.g., United States v.
Floyd, 281 F.3d 1346, 1349 (11th Cir. 2002). Mr. Ortega’s “vast ma-
jority” statement, then, was not the product of a reliable method-
ology and we need not consider it. Second, the statement is little
more than a vehicle for the attorney’s otherwise inadmissible hear-
say about the merits of his clients’ cases. This, too, is impermissi-
ble. See Mejia, 545 F.3d at 197. For these reasons, the “vast major-
ity” statement is not part of our summary judgment analysis here.
See Part II.F.4.
Mr. Ortega’s statistical evidence, which was that 38% of se-
lective assassinations in Colombia during the relevant time period
were committed by paramilitaries, is also not enough—alone or in
combination with other evidence—to create a jury issue. We
know of no case where so-called “naked statistical evidence” below
a 50% threshold has been deemed enough to sustain a civil plain-
tiff’s case on the issue of identity. Cf. Galvin, 488 F.3d at 1035 (“The
most probative [statistical] evidence is clearly the national market
share analysis used in the New York litigation, and it suggests the
probability that Keller purchased a Lilly pill is less than 30 per-
cent—well below the ‘more likely than not’ standard. On this
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19-13926 Opinion of the Court 95
record, a reasonable juror could not conclude Lilly was more likely
than not the manufacturer of the pills Keller took.”).
At best, Doe 378 has offered a “mere scintilla of evidence.”
Brooks v. Cnty. Comm’n of Jefferson Cnty., Ala., 446 F.3d 1160,
1162 (11th Cir. 2006) (quotation marks omitted). This, however,
“will not suffice; there must be enough of a showing that the jury
could reasonably find for [Doe 378].” Id. (quoting Walker v.
Darby, 911 F.2d 1573, 1577 (11th Cir. 1990)). See also Daniels v.
Twin Oaks Nursing Home, 692 F.2d 1321, 1326 (11th Cir. 1982)
(“[A] jury will not be allowed to engage in a degree of speculation
and conjecture that renders its finding a guess or mere possibil-
ity.”). Thus, the district court properly granted summary judg-
ment against Doe 378.
2
The district court granted summary judgment against Doe
840 (Genoveva Isabel Borja Hernandez) because she did not offer
admissible evidence linking her unnamed son’s murder to the
AUC. See D.E. 2551 at 60–61. Ludy Rivas Borja, the daughter of
the now-deceased Doe 840, seeks to challenge that ruling on ap-
peal.
Generally, “only parties to a lawsuit, or those that properly
become parties, may appeal an adverse judgment.” AAL High
Yield Bond Fund v. Deloitte & Touche LLP, 361 F.3d 1305, 1309
(11th Cir. 2004) (quoting Marino v. Ortiz, 484 U.S. 301, 304 (1988)).
Ms. Rivas Borja twice moved to substitute herself as a plaintiff in
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96 Opinion of the Court 19-13926
place of Doe 840. In her motions, Ms. Rivas Borja argued that un-
der Colombian law, “[a]s the victim’s [sister], [she] is a proper party
to the case, and may represent the interests of her siblings, as long
as she has their permission.” D.E. 2124 at 2. The defendants op-
posed those motions, asserting that Ms. Rivas Borja had failed to
show that she was the “proper party” to be substituted under Co-
lombian law. See Fed. R. Civ. P. 25(a)(1). Cf. Escareno v. Noltina
Crucible & Refractory Corp., 139 F.3d 1456, 1459 (11th Cir. 1998)
(explaining that a court should refer to state law to determine if
substitution is by a “proper party”).
The district court denied Ms. Rivas Borja’s first motion for
substitution because the documents “submitted in support of [the]
motion [were] all in Spanish,” and it was “unable to decipher”
them. See D.E. 2179 at 1. The court later denied the renewed mo-
tion as moot following its grant of summary judgment for the de-
fendants.
An order denying a motion for substitution is not a final de-
cision under 28 U.S.C. § 1291 unless it has “the effect of a dismis-
sal.” 1 Motions in Fed. Court § 6:75 (West 3d ed. & Mar. 2022 up-
date). Compare Va. Land Co. v. Miami Shipbuilding Corp., 201
F.2d 506, 508 (5th Cir. 1953) (denial of motion to substitute was not
a final decision because it was not an order of dismissal), with Pan-
ther Pumps & Equip. Co. v. Hydrocraft, Inc., 566 F.2d 8, 22–23 &
n.9 (7th Cir. 1977) (denial of motion to substitute is reviewable
once there is a final decision). In her initial brief, however, Ms.
Rivas Borja did not contest either denial of her motions to
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19-13926 Opinion of the Court 97
substitute. Instead, she challenged the entry of final judgment
against Doe 840 as though she had in fact been substituted as the
plaintiff in place of Doe 840. See Wolf Plaintiffs’ Initial Brief at 6
n.4 (“The term ‘Doe 840’ as used in this brief generally refers to the
substitute plaintiff.”). In her reply brief, Ms. Rivas Borja attempted
to raise arguments, for the first time, largely related to the denials
of her motions to substitute. But those arguments come too late.
By failing to present these arguments in her initial brief, she has
abandoned them. See, e.g., Allstate Ins. Co. v. Swann, 27 F.3d 1539,
1542 (11th Cir. 1994) (“Issues that clearly are not designated in the
initial brief ordinarily are considered abandoned.”).
“A substituted party steps into the same position as the orig-
inal party.” Ransom v. Brennan, 437 F.2d 513, 516 (5th Cir. 1971).
But having failed to properly challenge the district court’s denials
of her motions to substitute, Ms. Rivas Borja cannot contest the
district court’s summary judgment ruling as to Doe 840. See, e.g.,
Karcher v. May, 484 U.S. 72, 77 (1987); Wolff v. Cash 4 Titles, 351
F.3d 1348, 1353–54 (11th Cir. 2003). Under the circumstances, Ms.
Rivas Borja has not established that she has a “‘direct stake’ in the
outcome,” Hollingsworth v. Perry, 570 U.S. 693, 706 (2013), and
we therefore dismiss her appeal.
IV
We now turn to two cross-appeals filed by some of the de-
fendants. In the first cross-appeal, Carla Hills—as the personal rep-
resentative of the estate of Roderick Hills, Sr.—asserts that the dis-
trict court erred in exercising personal jurisdiction over the estate.
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98 Opinion of the Court 19-13926
In the second cross-appeal, the individual defendants argue that the
TVPA claims against them in the five complaints of the bellwether
plaintiffs did not satisfy Rule 8’s plausibility standard.
A
Mr. Hills, a former Director of Chiquita and President of the
Board’s Audit Committee, was named as a defendant in the actions
filed in New Jersey and Washington D.C. Ms. Hills, as personal
representative of the estate of Mr. Hills, asserts that the district
court erred in asserting personal jurisdiction over the estate. Spe-
cifically, she argues that the court mistakenly ruled that the estate
waived its personal jurisdiction objection. See Individual Defend-
ants’ Principal Cross-Appeal Br. at 123–25.
Where a “party [to a lawsuit] dies and the claim is not extin-
guished,” and upon a timely motion by a party, “the court may or-
der substitution of the proper party.” Fed. R. Civ. P. 25(a)(1). Gen-
erally, if personal jurisdiction “has been previously acquired of the
original party, then [it] continues over the substituted party.” Ran-
som v. Brennan, 437 F.2d 513, 518 (5th Cir. 1971) (interpreting Rule
25(a)(1)). This case, however, may involve a procedural wrinkle.
Although Mr. Hills had been served prior to his death, he had not
yet had an opportunity to challenge the court’s personal jurisdic-
tion over him due to a stay of the proceedings pending an unrelated
interlocutory appeal to this court. It is at least arguable, then, that
upon substitution Ms. Hills, as personal representative of the es-
tate, could have asserted personal jurisdiction objections on behalf
of the estate.
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19-13926 Opinion of the Court 99
After Mr. Hills passed away, his attorney filed a suggestion
of death. Once the district court granted the plaintiffs’ motion to
substitute his estate as a party, Ms. Hills filed a motion to dismiss
the claims against the estate on several grounds. In that motion,
Ms. Hills joined a motion to dismiss that had been filed by the other
individual defendants, stating that “[a]s explained in [their] motion,
a New Jersey court cannot exercise jurisdiction over an estate con-
stituted in the District of Columbia.” D.E. 912 at 1–2.
Significantly, Ms. Hills did not cite any legal authorities to
support her legal position. The district court denied Ms. Hills’ mo-
tion to dismiss, concluding that by merely joining the other defend-
ants’ motion and failing to make her own, factually-specific juris-
dictional arguments, she had waived the estate’s objection to per-
sonal jurisdiction. See D.E. 1493 at 7–8. 30
On appeal, Ms. Hills argues that the district court erred in
concluding that she had waived the estate’s personal jurisdiction
argument because waiver requires “some intentional and deliber-
ate action,” which she did not take. See Appellees’ Answer Br. at
123. She contends that her statement incorporating the individual
defendants’ arguments in their motion to dismiss was sufficient be-
cause it “addressed the only allegation in the [c]omplaint
30
Although Ms. Hills raised numerous other grounds for dismissal in the dis-
trict court, she does not assert any of those grounds on appeal.
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100 Opinion of the Court 19-13926
concerning personal jurisdiction”—that Mr. Hills was a D.C. resi-
dent before his death. See id. at 123, 125.
The problem for Ms. Hills is that her motion was specific to
Mr. Hills’ estate, not Mr. Hills individually. So any arguments
raised by the individual defendants in their own motion to dismiss
did not “explain[ ]” why “a New Jersey court [could not] exercise
jurisdiction over an estate constituted in the District of Columbia.”
D.E. 912 at 1–2. In fact, the individual defendants’ motion did not
speak at all to the point Ms. Hills was making. Their motion did
not set forth any arguments regarding the court’s personal jurisdic-
tion over any estate and did not cite any case law for the proposi-
tion that courts only have personal jurisdiction over estates in the
jurisdictions where they have been constituted. Additionally, the
individual defendants, to the extent they contested personal juris-
diction, raised specific points regarding their lack of minimum con-
tacts with the subject forums. The minimum contacts analysis as
it pertains to the individual defendants is not the same as the anal-
ysis that would have been required for Mr. Hills’ estate. See gen-
erally Religious Tech. Ctr. v. Liebreich, 339 F.3d 369, 373–75 (5th
Cir. 2003) (explaining the personal jurisdiction analysis for an es-
tate).
Joining in the individual defendants’ motion to dismiss,
then, did not preserve the estate’s objection to personal jurisdic-
tion. Cf. United States v. Ramirez-Rivera, 800 F.3d 1, 12 n.1 (1st
Cir. 2015) (explaining that although a party may adopt a co-party’s
brief or motion, “[a]doption by reference cannot occur in a vacuum
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19-13926 Opinion of the Court 101
and the arguments must actually be transferable from the propo-
nent’s to the adopter’s case”) (citation omitted). Ms. Hills was re-
quired to provide the district court with arguments and authorities
supporting her personal jurisdiction arguments as to the estate, and
she failed to do so.
On this record, we cannot conclude that the district court
erred by failing to apply a body of case law that Ms. Hills failed to
present. Though Ms. Hills may not have necessarily “waived” the
estate’s personal jurisdiction argument, she certainly did not
properly raise and preserve it either. And “generally [we] will not
consider a legal issue or theory unless it was presented to the [dis-
trict] court.” Dean Witter Reynolds, Inc. v. Fernandez, 741 F.2d
355, 360 (11th Cir. 1984).
B
The individual defendants contend that the bellwether
plaintiffs, in their five respective complaints, failed to plead plausi-
ble claims against them under the TVPA. They assert that the com-
plaints did not sufficiently allege state action and did not state
claims for aiding and abetting because they failed to identify under-
lying violations by a primary tortfeasor. The district court, they
argue, should have dismissed the TVPA claims in the five com-
plaints under Rule 12(b)(6). See Individual Defendants’ Principal
Cross-Appeal Br. at 109–23. Based on recent precedent, we con-
clude that the individual defendants’ challenge to the denial of their
Rule 12(b)(6) motion to dismiss is not cognizable in this procedural
posture.
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102 Opinion of the Court 19-13926
In Ortiz v. Jordan, 562 U.S. 180, 184 (2011), which involved
a civil rights claim under 42 U.S.C. § 1983, the Supreme Court held
that, on appeal from a jury verdict in favor of the plaintiff, the de-
fendants could not appeal the denial of their motion for summary
judgment and could only contest the sufficiency of the evidence
through proper Rule 50 motions. “To the extent that the [defend-
ants] urge [that the plaintiff] has not proven her case, they were . . .
obliged to raise that sufficiency-of-the-evidence issue by postver-
dict motion for judgment as a matter of law under Rule 50(b).” Id.at 191–92. In our circuit, after Ortiz, “a party may not appeal an
order denying summary judgment after there has been a full trial
on the merits.” Pensacola Motor Sales, Inc. v. Eastern Shore
Toyota, LLC, 684 F.3d 1211, 1219 (11th Cir. 2012).
The Sixth Circuit extended Ortiz to motions to dismiss in
Nolfi v. Ohio Ky. Oil Corp., 675 F.3d 538, 545 (6th Cir. 2012), rea-
soning that “[t]hough Ortiz applies specifically to summary judg-
ment, its logic applies with equal force to questions involving
pleadings.” Subsequently, some in the academy have advocated
for allowing review of denials of motions to dismiss in appeals fol-
lowing a trial on the merits. See, e.g., Luke Meier, The Reviewa-
bility of Denied Twombly Motions, 84 U. Cin. L. Rev. 1145, 1199–
200 (2016) (asserting, in part, that “[t]he rationale of Ortiz does not
apply to Twombly motions” because a “Twombly analysis is a
unique analysis that is not replicated at later stages of the trial court
proceedings”).
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19-13926 Opinion of the Court 103
We have recently sided with the Sixth Circuit. In Financial
Information Technologies, LLC v. iControl Systems, USA, LLC, 21
F.4th 1267 (11th Cir. 2021), a trade secrets case, the defendant ap-
pealing an adverse jury verdict argued in part that the district court
had erred in denying its motion to dismiss because the plaintiff had
“failed to allege its trade secrets with ‘reasonable particularity.’” Id.at 1273 n.2. We declined to address the Rule 12(b)(6) argument,
holding that “those [pleading] concerns dissipate when, as here, the
alleged trade secrets have been litigated in a full-blown trial.” Id.In support, we cited with a cf. signal to the Supreme Court’s deci-
sion in Ortiz and to the Sixth Circuit’s decision in Nolfi. See id.This case, unlike Ortiz, Nolfi, and iControl, does not involve
an appeal after a trial on the merits. Instead, the appeal is by the
plaintiffs after summary judgment was granted against them. And
the individual defendants are arguing in a cross-appeal—and not as
an alternative ground for affirmance—that their motion to dismiss
the TVPA claims should have been granted. Despite these differ-
ences, we believe the logic of Nolfi and iControl applies here.
When a case reaches the summary judgment stage, the operative
question is no longer whether the allegations in the complaint
made out a plausible claim, but whether the non-moving party has
presented sufficient evidence on the claim to get to a jury. In the
words of iControl, any pleading issues “dissipate” when the district
court evaluates the sufficiency of the evidence at summary judg-
ment. We therefore do not address the individual defendants’ Rule
12(b)(6) arguments as to the TVPA claims.
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104 Opinion of the Court 19-13926
V
Accordingly, we AFFIRM in part, VACATE and REMAND
in part, REVERSE and REMAND in part, and DISMISS in part, as
follows.
♦ We affirm (a) the summary judgment entered against Doe
378, (b) the denial of Carla Hills’ motion to dismiss the
claims against the Estate of Roderick Hills for lack of per-
sonal jurisdiction, and (c) the denial of the motions of the
individual defendants to dismiss the TVPA claims.
♦ We vacate the summary judgments entered against Juana
Doe 11 and Minor Doe 11, and Juana Pérez 43A and remand
for further proceedings.
♦ We reverse the summary judgments entered against John
Doe 7, Juvenal Fontalvo Camargo, Jane Doe 7, Nancy Mora
Lemus, José López 339’s seven surviving children, Ana Ofe-
lia Torres Torres, Pastora Durango, and Gloria Eugenia
Muñoz and remand for further proceedings because there
are issues of material fact as to whether the AUC murdered
their decedents.
♦ We dismiss the appeal of Doe 840.