Case 0:08-md-01916-KAM Document 2315 Entered on FLSD Docket 03/11/2019 Page 1 of 6

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
Case No. 08-01916-MD-MARRA

IN RE: CHIQUITA BRANDS

INTERNATIONAL, INC. ALIEN TORT
STATUTE AND SHAREHOLDERS
DERIVATIVE LITIGATION
__________________________________________/

This Document Relates To:

ATS ACTIONS

08-80465-CIV-MARRA (D.C. Action) (Does 1-144)

10-80652-CIV-MARRA (D.C. Action) (Does 1-976)
11-80404-CIV-MARRA (D.C. Action) (Does 1-677)
11-80405-CIV-MARRA (D.C. Action) (Does 1-254)
17-80475-CIV-MARRA (Ohio Action) (Does 1-2146)

__________________________________________/

Plaintiffs' Response in Support of Motion for Partial Summary

Judgment on the Affirmative Defense of Duress [DE 2288]

Plaintiffs represented by undersigned counsel join in the Motion made by Attorney Simons,

to the extent that Colombian law applies to this case. We have already argued in our Motion for

Partial Summary Judgment on Negligence Per Se, DE 2229-1, that US law should apply,

particularly where there is no real conflict of laws. However, even if Colombian law applies, this

is no reason for the Court to reconsider the defense.

Defendant Chiquita is estopped from arguing the duress defense by its plea agrement in the

criminal case. In addition, the same issue was actually litigated and decided in a nearly identical

civil case. The Court's ruling in the Julin case, 1 granting Plaintiffs’ Motion for Partial Summary

1
Presumably, negligence per se wasn't argued in the Julin case because those murders were
committed by the FARC, and Chiquita's guilty plea was based on its payments to the AUC.
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Judgment on the Affirmative Defense of Duress, DE 1733, should also be given collateral estoppel

effect.

Aside from the estoppel effect of these two other decisions, there's no policy argument for

re-examining this issue under Colombian law, since Colombia has no interest in creating barriers

for their own citizens to sue foreign companies in foreign courts. DE 2229-1 at 7-10. It would be

unfair to allow to Chiquita to argue the duress defense in cases brought by Colombian citizens but

not by Americans. It would also be unfair to allow Chiquita the benefit of its plea bargain, based

on the Factual Proffer, and then assert this defense in the civil case. Finally, it would make no

sense for Chiquita to admit liability has been established beyond a reasonable doubt, and then have

a jury trial on whether its conduct was the product of extorsion.

I. Chiquita waived the duress defense in its plea agreement, to which principles of
collateral estoppel apply.

Chiquita pled guilty and cannot assert a defense that was waived by the plea. The Court

need only determine which issues were actually determined and necessary for Chiquita's

conviction, and apply principles of collateral estoppel to them.

The common law doctrine of collateral estoppel, or issue preclusion, provides that “once

an issue is actually and necessarily determined by a court of competent jurisdiction, that

determination is conclusive in subsequent suits based on a different cause of action involving a

party to the prior litigation.” Montana v. United States, 440 U.S. 147, 153 (1979). Collateral

estoppel therefore “precludes relitigation of issues actually litigated and necessary to the outcome

of the first action.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5 (1979).

“In determining what facts and issues are precluded in a civil action that is based on an

underlying conviction, a court may look to the judgments of conviction, plea agreements, and facts

presented by the government during a Rule 11 hearing.” Buchanan County v. Blakenship, 496 F.

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Supp. 2d 715, 720 (W.D. Va. 2007). The court will closely scrutinize this record to determine

what issues are subject to estoppel in the civil litigation. See, e.g., Municipality of Anchorage v.

Hitachi Cable, Ltd., 547 F. Supp. 633, 643 (D. Alaska 1982) (concluding that “collateral estoppel

in the present case extends to all elements of the individual crimes to which [the defendant] pleaded

guilty and all factual findings of the trial judge at the conclusion of the plea”); Chisolm v. Defense

Logistics Agency, 656 F.2d 42, 47-48 (3d Cir. 1981); Seiffert v. Green, No. 81-1956, 1987 U.S.

Dist. LEXIS 6326, at *6 (E.D. Penn. July 14, 1987). For a guilty plea to be valid, there must be

an adequate factual basis for each element of the substantive offense. Libretti v. United States,

516 U.S. 29, 38 (1995). In addition, the Federal Rules of Criminal Procedure require that a court

“must determine that there is a factual basis for the plea” before entering a judgment of conviction.

Fed. R. Crim. P. 11(b)(3).

The traditional rule was that issue preclusion did not apply in civil cases following criminal

ones, since there was no mutuality of parties. See Wright & Miller, Federal Practice and Procedure

(2nd. Ed. 2002) at § 4474. The rule today is that a civil plaintiff may rest issue preclusion on the

defendant's criminal conviction. This is called offensive nonmutual issue preclusion. See id. at

437, Kowalski v. Gagne, 914 F.2d 299, 302-304 (1st Cir. 1990) (Defendant in wrongful death

action precluded under state law from relitigating issues resolved by conviction for second degree

murder. Conviction established that defendant had intentionally inflicted force on the decedent in

a manner that created a plain and strong likelihood of death.); U.S. v. Real Property, 149 F.3d 472,

475-476 (6th Cir. 1998) (defendant estopped from contesting lawfulness of search in civil

forfeiture proceeding); US. v. International Bhd. of Teamsters, 905 F.2d 610, 620-622 (2nd Cir.

1990) (union officers precluded from religitating issues resolved by their criminal convictions;

offensive issue preclusion would be denied if preclusion would be unfair, and no grounds for

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unfairness existed). See U.S. v. Frank, 494 F.2d 145, 158-161 (2nd Cir. 1974) (court ruled that

criminal trial jury be instructed that prosecution witness pending against defendant has a special

interest in the outcome, based on explicit determination that plaintiff could use criminal conviction

to estop the defendant in civil action) Although Wright & Miller doesn't cite any 11th Circuit

cases, nonmutual offensive issue preclusion is settled law, including in the 11th Circuit.

In Brown v. City of Hialeah, 30 F.3d 1433, 1437 (11th Cir. 1994), the plaintiff had plead

guilty to attempted murder in violation of Florida law. He then sued the arresting officer for the

use of excessive force. The plaintiff sought to offer evidence that he didn't attempt to shoot the

victim. The 11th Circuit held that the evidence was properly excluded because Florida law allows

issue preclusion on the basis of a guilty plea. Id.

In Blohm v. Commissioner, 994 F.2d 1542, 1553-1555 (11th Cir. 1993), a taxpayer plead

guilty to fraud. The conviction was used to preclude relitigation of the fraud issue in his challenge

to an assessment of additional taxes for fraud. The court reasoned that the plea is an "intrinsic

admission of each element of the crime, that triggers the collateral consequences attending that

plea" so long as the plea is voluntary and intelligent and there is a sufficient factual basis to support

the plea. Id. A defendant who wishes to avoid the collateral consequences should attempt to enter

a plea of nolo contendere. Id.

As a general rule, a prior judgment should not receive collateral estoppel effect where “a

plaintiff could easily have joined in the earlier action or where … the application of offensive

estoppel would be unfair to a defendant.” Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 330

(1979). Situations where application of offensive estoppel may be unfair include where the

“defendant in the first action is sued for small or nominal damages” and the defendant had “little

incentive to defend [the charges] vigorously.” Id. An unfair application of the doctrine could also

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occur where “the judgment relied upon as a basis for the estoppel is itself inconsistent with one or

more previous judgments in favor of the defendant,” or where “the second action affords the

defendant procedural opportunities unavailable in the first action that could readily cause a

different result.” Id. at 330-31. None of these exceptions apply. Therefore, Chiquita is estopped

from raising the duress defense.

II. The Court should also apply principles of collateral estoppel to its Order granting the
Julin plaintiffs' motion in limine to exclude evidence of the duress defense.

Similarly, the Court should apply collateral estoppel to its Order granting the Julin

Plaintiffs’ Motion for Partial Summary Judgment on the Affirmative Defense of Duress, DE 1733,

since the extortion threats are just as remote and abstract. In Julin, the Court reviewed the duress

defense on the merits, finding the threats cited by Chiquita were too speculative and remote. See

Order Granting Plaintiffs’ Motion for Partial Summary Judgment on the Affirmative Defense of

Duress, DE 1733. Chiquita can cite only one incident of a threat that may not have been considered

in Julin. Some time in 1996, Chiquita manager Charles Keiser and Banamex attorney Reinaldo

Escobar de la Hoz voluntarilty met with AUC commander Carlos Castaño in his home, agreeing

that all future payments to the AUC would be made through convivir shell companies, rather than

in cash, as had been their practice for many years. Chiquita then paid the AUC three cents per box

of bannanas shipped, funneled through front companies that were set up about two months later.

Rather than being the "threat," this meeting was the "agreement" between Chiquita and the AUC

for Plaintiffs' civil conspiracy claims. The defense would still fail on the merits

Conclusion

For the foregoing reasons, the Court should GRANT Plaintifs' Motion for Partial Summary

Judgment on the Afirmative Defense of Duress, DE 2288. The issue has already been litigated

and determined twice now.

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Respectfully submitted,

/s/ Paul Wolf

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

March 11, 2018

Certificate of Service

I hereby certify that on this 11th day of March, 2018, I filed the foregoing document with
the Clerk of the Court using the Court's Electronic Case Filing (ECF) system, which will send
electronic notices to all persons entitled to receive them.

/s/ Paul Wolf

_____________
Paul Wolf